| Synopsis History | "Lance Paul Larsen vs. the Hawaiian Kingdom" Permanent Court of Arbitration, The Hague |
News Arbitral Log |
The Permanent Court of Arbitration
at the Hague, the Netherlands
LANCE PAUL LARSEN, CLAIMANT
VS.
THE HAWAIIAN KINGDOM, RESPONDENT
MEMORIAL OF THE
HAWAIIAN KINGDOM GOVERNMENT
MEMORIAL
DAVID KEANU SAI
Acting Minister of Interior
AgentPETER UMIALILOA SAI
Acting Minister of Foreign Affairs
1st Deputy AgentGARY VICTOR DUBIN, ESQUIRE
Acting Attorney General
2nd Deputy AgentKAU'I P. GOODHUE
Acting Minister of Finance
3rd Deputy AgentCouncil of Regency
P.O. Box 2194
Honolulu, Hawaiian Kingdom
96805-2194
(808) 239-5347
Introduction
Part One
The Hawaiian Kingdom
Introduction
Chapter I. Dominion of the Hawaiian Kingdom (circa. 1810)
- Establishing a Constitutional form of Government for the Hawaiian Kingdom (circa. 1839)
- The Organic and Statutory Laws of the State (circa. 1845-1886)
- The Hawaiian Domain
Chapter II. Hawaiian Land Tenure
- Establishing a Board of Commissioners to Quiet Land Titles
- The Great Land Division of the Konohiki (Landlords) of the Realm (circa. 1848)
Chapter III. 1843 Provisional Cession to Great Britain and the Ultimate Recognition of Hawaiian Independence
- Commercial Treaties and Conventions concluded between the Hawaiian Kingdom and other World Powers
- Belgium
- Bremen
- Denmark
- France and its former Territories
- Germany
- Great Britain and its former Territories
- Hamburg
- Italy and its former Territories
- Japan
- Netherlands and its former Territories
- Portugal and its former Territories
- Russia and its former Territories
- Samoa
- Spain and its former Territories
- Swiss Confederation
- Sweden and Norway
- United States of America and its former Territories
- Universal Postal Union
- Consular Relations between the Hawaiian Kingdom and other States
- Hawaiian Diplomatic Agents Abroad
- The Conduct and Practice by the International Community Subsequent to the 1843 Anglo-Franco Proclamation Further Establishes that the Hawaiian Kingdom is an Independent State
Chapter IV. The Unsuccessful Revolution of 1893
- United States Troops Invade Hawaiian Territory to Aide a Small Band of Insurgents
- Failed Revolutionists declare themselves the Republic of Hawaii
Chapter V. Unsuccessful Annexation Attempt of 1898
- Second Attempt to Annex the Hawaiian Islands to the United States Fails
- Laws of War Activated between the United States and the Kingdom of Spain
- United States Municipal Law Erroneously Purports to Annex the Hawaiian Islands
Chapter VI. Under International Law, Treaties Between States Must be Strictly Observed
Chapter VII. Adherence to Hawaiian Kingdom Law under Prolonged Occupation
- The Establishment of the First Co-partnership Firm under Kingdom Law Since 1893
- Re-establishing the Hawaiian Kingdom Government, by and through the Hawaiian Co-partnership Statute
- Quiet Title Action instituted by the Hawaiian Kingdom Trust Company and the Perfect Title Company For the Purpose of Fulfilling the Duties and Obligations of the Hawaiian Kingdom Government
- Hawaiian Kingdom Trust Company and the Perfect Title Company bind themselves by entering into Covenant of Agreement
- Hawaiian Kingdom Trust Company provides Remedy for Invalid Claims to Fee-simple Titles
- Acting Regent Assumes Role of the Hawaiian Kingdom Trust Company under the Covenant Agreement
- Perfect Title Company's Land Title Investigations Cause Firestorm in the Real Estate Industry
- Occupational Government Illegally Raided the Offices of the Acting Regent and the Perfect Title Company
- Further Actions Taken by the Acting Regency to re-assert State Responsibility and Obligations
- Petition for Writ of Mandamus to the United States Supreme Court
- Complaint for Treaty Violations by the United States filed in the United States Supreme Court
- Granting of Limited Powers of Attorney to Hawaiian Kingdom Treaty Partners
- Hawaiian Kingdom's Ratification of the 1907 Hague Convention establishing the Permanent Court of Arbitration and the 1969 Vienna Convention on the Law of Treaties
- Commissions of Government Officials
The Interpretation of the Regulations on The Laws and Customs Of War on Land
Introduction
Chapter I. An Overview of the Object and Purpose of the Regulations on the Laws and Customs of War on Land
- 1900 - The Territorial Act
- 1921 - The Hawaiian Homes Commission Act
- 1941 - World War II
- 1945 - The United Nations' Decolonization Process
- 1950 - Adoption of a "Constitution" by the Residents of the So-called Territory of Hawai'i
- 1959 - The Purported Statehood Act
- 1959 - The United States Government Incorrectly Reported to the United Nations that Hawai'i achieved Self-Governance
- 1988 - U.S. Attorney General's Opinion Questions the Annexation of Hawai'i by a Simple Legislative Act
- 1993 - The Apology Resolution
- 1999 - U.S. Solicitor General Implicates the United States Government under the Laws of War
Chapter III. The Hawaiian Kingdom Government Responds to Claimant's Petition
DECLARATION OF DAVID KEANU SAI
ANNEXES
Annex 1: Statute Laws of His Majesty Kamehameha III, vol. 1 (1845 & 1846), Archives of Hawai'i, Honolulu. Annex 2: Statute Laws of His Majesty Kamehameha III, vol. 2 (1847), Archives of Hawai'i, Honolulu. Annex 3: Penal Code of the Hawaiian Kingdom (1850), Archives of Hawai'i, Honolulu. Annex 4: Civil Code of the Hawaiian Kingdom (1859), Archives of Hawai'i, Honolulu. Annex 5: Penal Code of the Hawaiian Kingdom (1869), Archives of Hawai'i, Honolulu. Annex 6: Compiled Laws of the Hawaiian Kingdom (1884), Archives of Hawai'i, Honolulu. Annex 7: Session Laws of the Hawaiian Kingdom's Legislative Assembly (1884), Archives of Hawai'i, Honolulu. Annex 8: Session Laws of the Hawaiian Kingdom's Legislative Assembly (1886), Archives of Hawai'i, Honolulu. Annex 9: Roster Legislatures of Hawai'i, 1841-1918, Compiled by Robert C. Lydecker, Librarian (1918), Archives of Hawai'i, Honolulu. Annex 10: The Executive Documents of the United States House of Representatives, 53d Congress, 1894-95, Appendix II, Foreign Relations, 1894, Affairs in Hawai'i, volumes 1 and 2. Annex 11: March 16, 1854 Proclamation of Hawaiian Neutrality, Archives of Hawai'i, Honolulu. Annex 12: Islands of the Hawaiian Domain, Prepared by A.P. Taylor, Librarian (January 10, 1931), Archives of Hawai'i, Honolulu. Annex 13: Map of the Hawaiian Islands, scale 1:5,000,000 at the equator, Series 1105, prepared by the Army Map Service (PV), Corps of Engineers, U.S. Army, Washington, D.C. Compiled in 1963. Annex 14: Hawaiian Almanac and Annual for 1891, A Brief History of Land Titles in the Hawaiian Kingdom, by W.D. Alexander, Surveyor General, Honolulu, Archives of Hawai'i, pp. 105-124. Annex 15: Kekiekie v. Edward Dennis (1851), 1 Hawaiian Reports 69; Kukiiahu v. William Gill (1851), 1 Hawaiian Reports 90. Annex 16: Treaties and Conventions of the Hawaiian Kingdom, Ka Elele (1887), Archives of Hawai'i, Honolulu. Annex 17: 1897 Historical Truths relating to the Overthrow of the Hawaiian Monarchy, The Independent Newspaper (1897). Archives of Hawai'i, Honolulu. Annex 18: Lorrin Thurston, "The Fundamental Law of Hawai'i," Honolulu (1904), 1897 Treaty of Annexation between the Republic of Hawai'i and the United States of America, pp. 243-246. Annex 19: Her Majesty Queen Lili'uokalani's Protest filed in the United States Department of State, June 18, 1897. United States National Archives. Annex 20: 1897 Petitions of Redress to United States President William McKinley by the Honorable James Kaulia, President of the Hawaiian Men's Patriotic League, the Honorable Mrs. James Campbell, President of the Hawaiian Women's Patriotic League, and the Honorable David Kalauokalani, President of the Hui Kalai'aina. United States National Archives. Annex 21: Lorrin Thurston, "The Fundamental Law of Hawai'i," Honolulu (1904), Documents and Procedure Incidental to the Transfer of Sovereignty from the Republic of Hawaii to the United States of America, pp. 253-256. Annex 22: 1897 Signature Petitions of the Hawaiian Men and Women's Patriotic Leagues Protesting Annexation of the Hawaiian Islands to the United States. United States National Archives. Annex 23: Co-partnership Agreements establishing Quong Lee and Company (1880), Hawai'i Bureau of Conveyances, book 66, p. 286; Cosmopolitan Hotel Company (1882), Hawai'i Bureau of Conveyances, book 74, p. 174; See Sing Rice Company, Hawai'i Bureau of Conveyances, book 73, p. 424. Annex 24: Co-partnership Agreement establishing Perfect Title Company (1995), Hawai'i Bureau of Conveyances, document no. 95-153346. Annex 25: Co-partnership Agreement establishing the Hawaiian Kingdom Trust Company (1995), Hawai'i Bureau of Conveyances, document no. 96-000263. Annex 26: Deeds of Trust to the Hawaiian Kingdom Trust Company, a general partnership, Hawai'i Bureau of Conveyances, document no.'s document no.'s 96-004246, 96-006277, 96-014116, 96-026387, 96-026388, 96-028714, 96-024845, 96-032930, 96-044551, 96-044550, 96-047382, 96-047380, 96-047379, 96-047381, 96-056981, 96-052727, 96-060519, 96-032728, 96-057667, 96-057668, 96-060520, 96-061209, 96-061207, 96-056980, 96-052729, 96-063384, 96-063385, 96-063382, 96-057664, 96-019923, 96-046712, 96-063386, 96-063382, 96-063383, 96-066996, 96-061208 and 96-046711. Annex 27: February 3, 1996 Resolution of the Trustees of the Hawaiian Kingdom Trust Company, a general partnership, attached as Exhibit A of the Agreement entered between the Hawaiian Kingdom Trust Company, a general partnership, and Perfect Title Company, a general partnership, Hawai'i Bureau of Conveyances, document no. 96-016046. Annex 28: Agreement entered between the Hawaiian Kingdom Trust Company, a general partnership, and Perfect Title Company, a general partnership, Hawai'i Bureau of Conveyances, document no. 96-016046. Annex 29: Newspaper Notice to Quiet Title printed in the February 19, 1996 issue of the Pacific Business News, Honolulu. Annex 30: Notice of change of address of the Hawaiian Kingdom Trust Company, Hawai'i Bureau of Conveyances, document no. 96-057665. Annex 31: Notice of change of address of Perfect Title Company, Hawai'i Bureau of Conveyances, document no. 96-057666. Annex 32: Deed from David Keanu Sai to Donald A. Lewis, Hawai'i Bureau of Conveyances, document no. 96-026389. Annex 33: Deed from Donald A. Lewis to Nai'a-Ulumaimalu, Hawai'i Bureau of Conveyances, document no. 96-027002. Annex 34: Notice of Appointment of Acting Regent by the Trustees of the Hawaiian Kingdom Trust Company, a general partnership, Hawai'i Bureau of Conveyances, document no. 96-035316. Annex 35: Deed from the Hawaiian Kingdom Trust Company, a general partnership, to Acting Regent, Hawai'i Bureau of Conveyances, document no. 96-067865. Annex 36: Divers Periodicals about the Perfect Title Company. Annex 37: March 1, 1996 Proclamation of Acting Regent confirming the Quieting of all land titles instituted by the Hawaiian Kingdom Trust Company, a general partnership, and Perfect Title Company, a general partnership; filed as a Notice by the Hawaiian Kingdom Trust Company, Hawai'i Bureau of Conveyances, document no. 96-035328. Annex 38: February 28, 1997 Proclamation of Acting Regent declaring the Hawaiian Monarchical form of Government is re-established. Annex 39: February 13, 1998 Proclamation of Acting Regent declaring a National Voter Registration. Annex 40: March 12, 1998 Memorandum on Suffrage of Female subjects within the Kingdom by the Acting Regent. Annex 41: Notice of Investigation by Perfect Title Company, claim no. 64, Hawai'i Bureau of Conveyances, document no. 96-115252. Annex 42: Warranty Deed to Mrs. Carol Simafranca, claim no. 64, from the Acting Regent, Hawai'i Bureau of Conveyances, document no. 96-165697. Annex 43: Warranty of Seisin for Mrs. Carol Simafranca, claim no. 64, from the Acting Regent, Hawai'i Bureau of Conveyances, document no. 97-046415. Annex 44: Grand Jury Transcripts, criminal no. 97-3082, State of Hawai'i vs. Carol Simafranca, Michael Simafranca, Donald A. Lewis, and David Keanu Sai (December 17, 1997). Annex 45: 1997 Protest by His Excellency David Keanu Sai, Acting Regent Annex 46: 1999 Protest by His Excellency David Keanu Sai, Acting Regent Annex 47: Petition for Writ of Mandamus (1997), by His Excellency David Keanu Sai, Acting Regent of the Hawaiian Kingdom against the President of the United States of America, case no. 97-969, United States Supreme Court. Annex 48: Amended Petition for Writ of Mandamus, case no. 97-969, United States Supreme Court. Annex 49: Petition for Rehearing for Writ of Mandamus, case no. 97-969, United States Supreme Court. Annex 50: Motion for Leave to File a Bill of Complaint, Complaint, and Memorandum in Support (1998), by His Excellency David Keanu Sai, Acting Regent of the Hawaiian Kingdom against the President of the United States of America, United States Supreme Court. Annex 51: Appendix to Motion for Leave to File a Bill of Complaint, Complaint, and Memorandum in Support (1998), United States Supreme Court. Annex 52: Motion to Direct the Clerk of the Court to File a Motion for Leave to File a Bill of Complaint, Complaint, and Memorandum in Support (1998), United States Supreme Court. Annex 53: Transmittal Letter to the Swiss Government, with attached Swiss Exequatur from the Hawaiian Kingdom Government (1999) Annex 54: Transmittal Letter to the Belgian Government, with attached Belgian Exequatur from the Hawaiian Kingdom Government (1999) Annex 55: Transmittal Letter to the French Government, with attached French Exequatur from the Hawaiian Kingdom Government (1999) Annex 56: Transmittal Letter to the German Government, with attached German Exequatur from the Hawaiian Kingdom Government (1999) Annex 57: Transmittal Letter to the Italian Government, with attached Italian Exequatur from the Hawaiian Kingdom Government (1999) Annex 58: Transmittal Letter to the Japanese Government, with attached Japanese Exequatur from the Hawaiian Kingdom Government (1999) Annex 59: Transmittal Letter to the Norwegian Government, with attached Norwegian Exequatur from the Hawaiian Kingdom Government (1999) Annex 60: Transmittal Letter to the Portuguese Government, with attached Portuguese Exequatur from the Hawaiian Kingdom Government (1999) Annex 61: Transmittal Letter to the Belgian Government, with attached Belgian Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 62: Transmittal Letter to the Danish Government, with attached Danish Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 63: Transmittal Letter to the British Government, with attached British Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 64: Transmittal Letter to the French Government, with attached French Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 65: Transmittal Letter to the German Government, with attached German Limited Power of Attorney from the Hawaiian Kingdom Government.
Annex 66 Transmittal Letter to the Italian Government, with attached Italian Limited Power of Attorney from the Hawaiian Kingdom Government.Annex 67: Transmittal Letter to the Japanese Government, with attached Japanese Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 68: Transmittal Letter to the Dutch Government, with attached Dutch Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 69: Transmittal Letter to the Norwegian Government, with attached Norwegian Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 70: Transmittal Letter to the Portuguese Government, with attached Portuguese Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 71: Transmittal Letter to the Russian Government, with attached Russian Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 72: Transmittal Letter to the Spanish Government, with attached Spanish Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 73: Transmittal Letter to the Swiss Government, with attached Swiss Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 74: Transmittal Letter to the Swedish Government, with attached Swedish Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 75: Transmittal Letter to the American Government, with attached American Limited Power of Attorney from the Hawaiian Kingdom Government. Annex 76: Divers Commissions of Hawaiian Kingdom Government Officers. Annex 77: Hawaiian Kingdom Government's Ratification of the 1969 Vienna Convention on the Law of Treaties. Annex 78: Hawaiian Kingdom Government's Ratification of the 1907 Hague Convention for the Pacific Settlement of International Disputes. Annex 79: April 20, 1998 Letter of correspondence from the Claimant, Mr. Lance P. Larsen, to His Excellency David Keanu Sai, Acting Regent. Annex 80: January 4, 2000 Letter of correspondence from Ms. Ninia Parks, attorney for the Claimant, Mr. Lance P. Larsen, to the Acting Council of Regency. Annex 81: Special Agreement of January 25, 2000 between Mr. Lance Paul Larsen, by his attorney, and the Hawaiian Kingdom Government, by His Excellency David Keanu Sai, Acting Minister of Interior. Annex 82: Letter by the Parties to the Hawaiian Arbitration of February 25, 2000 notifying the International Bureau of the Permanent Court of Arbitration of a forty five (45) day extension of submitting each Parties' Memorials. Annex 83: Amendment to the Special Agreement of January 25, 2000, increasing the number of arbitrators from one (1) to three (3). Annex 84: Letter of March 3, 2000, by His Excellency David Keanu Sai, Acting Minister of Interior, documenting a telephone discussion he had with John Crook, Legal Adviser to the United States Department of State for the United Nations, in Washington D.C., about an offer to extend to the United States the opportunity to join in the Lance Larsen v. the Hawaiian Kingdom arbitration. Annex 85: Second Letter by the Parties to the Hawaiian Arbitration of April 19, 2000
notifying the International Bureau of the Permanent Court of Arbitration of a
thirty (30) day extension of submitting each Parties' Memorials.Annex 86: Privy Council Resolution establishing Council of Regency of September 10, 1999.
Memorial
of the Government of the Hawaiian Kingdom
INTRODUCTIONA. Preliminary Statement
1. This case arises out of a dispute between the Claimant, Mr. Lance Paul Larsen, a Hawaiian national, and the Respondent, the Hawaiian Kingdom Government, the interim governing body of the Independent Nation State, the Hawaiian Kingdom, over its alleged failure to protect Mr. Larsen’s life, liberty and national rights from the imposing force of the occupying Nation, the United States of America. 1
2. Under the Hague Convention IV, Respecting the Laws and Customs of War on Land of 18 October 1907, an occupying State must respect the existing territorial laws and not impose its own domestic laws within the occupied territory. Further, under the basic rules of wartime occupation, the sovereignty of the territory does not pass to the occupying power.
3. The United States has egregiously subsumed the Hawaiian Kingdom. With respect to the violations against Mr. Larsen, the United States, through its political sub-division, the State of Hawaii, imposed its own domestic laws related to traffic infractions and illegally incarcerated Mr. Larsen for adhering to Kingdom law. 2 Mr. Larsen was sent to prison for thirty days, seven of which was under solitary confinement.
4. In this case, the Hawaiian Kingdom Government acknowledges the violations against Mr. Larsen and submits that it has acted, although unsuccessfully, on the Petitions made by Mr. Larson to protect his national rights.
5. Therefore the parties to this matter seek a determination by the Arbitral Tribunal regarding the rights of Mr. Larsen under international law and the redress, if any, he may have against the Hawaiian Kingdom Government.
6. This Memorial is divided into two parts.
Part One deals with the Hawaiian Kingdom from (a) the era of non State recognition on through (b) the recognition of its independence by the major powers of the world and to (c) the maintenance of its independence to the present.Part Two deals with (a) the interpretation of the Regulations on the Laws and Customs of War on Land, and (b) the subsequent conduct of the United States in relation to both the Regulations and the Hawaiian Kingdom, and as a consequence, the Claimant's national rights.
B. Procedural Statement.7. The case comes before the Arbitral Tribunal pursuant to a special agreement between the Hawaiian Kingdom Government and Mr. Larsen of 25 January 2000, 3 which superceded, to the extent inconsistent with, the Notice of Arbitration of November 8, 1999 and the Arbitration Agreement of October 30, 1999, 4 requesting the Arbitral Tribunal:
"...to determine, on the basis of the Hague Conventions IV and V of 18 October 1907, and the rules and principles of international law, whether the rights of the Claimant under international law as a Hawaiian subject are being violated, and if so, does he have any redress against the Respondent Government of the Hawaiian Kingdom?"8. Article 43 of the Hague Convention IV of 18 October 1907, Respecting the Laws and Customs of War on Land, provides:
"The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."9. Article 1 of the Hague Convention V of 18 October 1907, Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, provides:
"The territory of neutral Powers is inviolable."10. For the purpose of these proceedings and in the absence of the Hawaiian Kingdom's ratification of the 1907 Hague Conventions IV and V, the Hawaiian Kingdom accedes to the terms of the Conventions as well as to the principles of the law of nations for the purpose of these proceedings.
11. The Hawaiian Kingdom was recognized as an Independent State by the United States of America on December 19, 1842 5 and also recognized in a separate act by Her British Majesty, the Queen of Great Britain, and by His French Majesty, the King of France on November 28, 1843. 6 This recognition by Great Britain and France was by Proclamation at the Court of London, (hereinafter referred to as the "1843 Anglo-Franco Proclamation").
12. His Majesty King Kamehameha III, by Proclamation of May 16, 1854, declared Hawai'i as a Neutral State. 7 Hawai'i has maintained its neutrality to the present, notwithstanding the present and ongoing illegal occupation of Hawai'i's territorial dominion by another State.
13. The steps by which this dispute came before the Arbitral Tribunal are as follows:
14. On August 4, 1999, Claimant filed an original complaint for injunctive relief in the United States District Court for the District of Hawai'i. 8 The complaint sought protection for the Claimant under the 1849 Hawaiian-American Treaty until the international title to the Hawaiian Islands can be resolved at the Permanent Court of Arbitration between the Hawaiian Kingdom and the United States of America. The complaint also alleged that both the Governments of the Hawaiian Kingdom and the United States were in violation of its 1849 Treaty. The Hawaiian Kingdom in violation for "allowing" the unlawful imposition of U.S. municpal laws over the Claimant within the territorial jurisdiction of the Hawaiian Kingdom, the United States for "imposing" said laws.
15. On August 31, 1999, Claimant filed a Petition For Redress of Grievances with his government, the Hawaiian Kingdom. 9 Simultaneously, Claimant was being threatened with imprisonment by the United States, via its political subdivision the State of Hawai'i, for adhering to Kingdom law. Despite Claimant's efforts to protect himself from incarceration, Claimant was illegally imprisoned by the United States, via the said State of Hawai'i, pursuant to convictions on various traffic offenses. While in prison, Claimant filed a Writ of Habeas Corpus with the Third Circuit Court, Hilo Division, State of Hawai'i, in order to preserve his nationality, his protest, and his hopes of obtaining release from the illegal imprisonment. 10
16. On October 13, 1999, Claimant voluntarily dismissed, without prejudice, all parties except for the Hawaiian Kingdom in the said Complaint for Injunctive Relief filed in the U.S. District Court of Hawai'i on August 4, 1999. 11 This was done so that a stipulated settlement agreement could be entered into between Claimant and the Hawaiian Kingdom to dismiss the entire case and submit the dispute between them to binding arbitration before the Permanent Court of Arbitration at The Hague, in the Netherlands. Both Parties had determined that the United States was not a Party to their present dispute and that the rules of the Permanent Court of Arbitration did allow a private party and a State to binding arbitration.
17. On October 30, 1999, Claimant entered into said Arbitration Agreement with the Hawaiian Kingdom, through the Kingdom's Council of Regency. 12 The agreement was to submit the dispute, alleged in the said Complaint for Injunctive Relief, to final and binding arbitration in accordance with the Permanent Court of Arbitration Optional Rules For Arbitrating Disputes Between Two Parties of Which Only One is a State.
18. On November 5, 1999, Judge Samuel King of the United States District Court for Hawai'i signed an Order to a "Stipulated Settlement Agreement dismissing entire case without prejudice as to all parties and all issues and submitting all issues to binding arbitration" between the Hawaiian Kingdom and Mr. Larsen at the Permanent Court of Arbitration at The Hague, in the Netherlands. 13
19. On November 8, 1999, arbitral proceedings were instituted by Notice of the Claimant. 14 On December 3, 1999, the Notice of Arbitration was amended by replacing the Optional Rules For Arbitrating Disputes Between Two Parties of Which Only One is a State with the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules. 15
20. On January 25, 2000, a Special Agreement was entered into between the parties clarifying the dispute. 16 The schedule of submission of the parties' memorials, counter-memorials and oral hearings was also made a part of the Special Agreement.
21. Both parties mutually agreed to extend the submission of their Memorials an additional forty-five (45) days and jointly notified the International Bureau of the Permanent Court of Arbitration on February 25, 2000 of this agreement. 17
22. On February 28, 2000, the Special Agreement was amended to increase the number of arbitrators from one to three. 18
23. On March 3, 2000, the Hawaiian Kingdom, by its Agent David Keanu Sai, and with the consent of the Claimant, spoke to Mr. John Crook, (Assistant Legal Adviser for United Nations, United States Department of State), in Washington D.C. At this time His Excellency David Keanu Sai extended to the United States of America an opportunity to join in the arbitral proceedings. 19 To date, the United States has made no effort to enter the arbitral proceedings.
24. On April 19, 2000, the Parties mutually agreed to extend the submission of memorials an additional thirty (30) days, with the stipulation that the submission of counter-memorials is limited to not more than twenty (20) days so that the July 2000 oral hearing remains unaffected. 20
C. Summary of Argument.25. In the agreement submitting this case for arbitration, the parties have asked the Arbitral Tribunal "to determine, on the basis of the Hague Conventions IV and V of 18 October 1907, and the rules and principles of international law, whether the rights of the Claimant under international law, as a Hawaiian subject, are being violated, and if so, does Claimant have any redress against the Respondent Government of the Hawaiian Kingdom?" The Hawaiian Kingdom's submission states as follows: that the Claimant's rights under international law are being violated, but to what extent, is left to the Arbitral Tribunal to decide. That this decision must be made within fixed and established principles and laws pertaining to the matter, and that the Hawaiian Kingdom Government is not liable for redress of these violations under its present conditions as an occupied State.
26. The Government of the Hawaiian Kingdom rests its case for the above propositions on seven separate grounds:
- The revolutionists of January 17, 1893, (to include the Republic of Hawai'i declared on July 4, 1894) failed to achieve de facto recognition by the international community as a successor government. The revolutionist were thus unsuccessful in replacing the Hawaiian Kingdom body politic which existed previous to the failed revolution of 1893.
- There was no annexation of the Hawaiian Kingdom, nor any of its territories, by the United States of America as provided by international law under the principles of acquisition of territories by means of discovery, accretion, cession, conquest, or prescription.
- The sovereignty of the Hawaiian Kingdom, as an Independent nation State, has remained intact since its recognition by the Anglo-Franco Proclamation of November 28, 1843. This sovereignty remains intact to the present, notwithstanding the Hawaiian government (body politic) lapsing into abeyance for over 100 years. This lapse was due to circumstances associated with the unlawful incursion of the Hawaiian territory by the United States of America.
- The unlawful incursion into the Hawaiian territory, by the United States on August 13, 1898, absent a treaty of cession, occurred over the protests of the nationals of the Hawaiian Kingdom and its Head of State, Her Majesty Queen Lili'uokalani. This incursion occurred within the territory of a neutral State, the Hawaiian Kingdom. The United States of America, as a belligerent State, was already at war with Spain, and utilized Hawaiian territory as a staging ground for conflicts in the Spanish territories of the Philippines and Guam.
- The Hague Convention IV, Respecting the Laws and Customs of War on Land on 18 October 1907, properly interpreted, attributes responsibility to the occupying power to administer the existing territorial laws of the territory it is occupying, unless military exigencies imperatively demand otherwise. The occupying force must not interfere with the existing rights and obligations of the inhabitants of the territory it is occupying. These inhabitants also do not owe allegiance to the occupying power.
- The basic rule of wartime occupations stipulates that sovereignty of the territory does not pass to the occupying power, and therefore, the rights of occupancy cannot be co-extensive with those of sovereignty. Thus, it would then be within the rights of the nationals of the occupied nation (i.e. the Hawaiian Kingdom) to re-establish their government within the confines of Hawaiian Kingdom domestic law, and to begin exercising those rights, those corresponding obligations, and those duties that exist between the government and its nationals under the laws of occupation, and to maintain its obligations due to other States; and
- Although, under the Hague Regulations, the responsibility of protecting the inhabitants of an occupied State is provisionally upon the occupying nation, that being the United States of America, the Hawaiian Kingdom has acted upon the Petitions of the Claimant to intercede, on his behalf, but has not been successful in the protection of his national rights.
Part OneThe Hawaiian Kingdom
INTRODUCTION
CHAPTER I. Dominion of the Hawaiian Kingdom (circa. 1810).
27. Prior to the first arrival of Europeans in 1778, the inhabitants of the Hawaiian Islands lived in a highly organized, self-sufficient, social system, with a sophisticated language, culture, religion and a land tenure that bore a remarkable resemblance to the feudal system of ancient Europe. 21
28. The monarchical government of the Hawaiian Islands was established in 1810 by His Majesty King Kamehameha I. 22 He ruled the Hawaiian Islands from April 1810 until his death in May 1819. Upon the death of King Kamehameha I, his son King Kamehameha II was successor to the throne and ruled the Hawaiian Islands from May 8, 1819 to July 1824 when he died of measles in London. 23 His Majesty King Kamehameha III, the second son of His Majesty King Kamehameha I, was successor to the throne upon the death of Kamehameha II in July 1824. 24
29. The Hawaiian Kingdom was governed until 1838, without legal enactments, and was based upon a system of common law, which consisted partly of the ancient kapu (taboo) and the practices of the celebrated Chiefs, that had been passed down by tradition since time immemorial. 25 The Declaration of Rights, proposed and signed by His Majesty King Kamehameha III on June 7, 1839, was the first essential departure from the ancient ways. 26
A. Establishing a Constitutional form of Government
for the Hawaiian Kingdom (circa. 1839).30. The Declaration of Rights of 1839 recognized three classes of persons having vested rights in the lands; 1st, the Government; 2nd, the Chiefs; and 3rd, the native Tenants. It declared protection of these rights to both the Chiefly and native Tenant classes. 27 These rights were not limited to the land, but included the right to
"...life, limb, liberty, freedom from oppression; the earnings of his hands and the productions of his mind, not however to those who act in violation of the laws." 2831. One year later on October 8, 1840, His Majesty King Kamehameha III voluntarily relinquished his absolute powers and attributes, by promulgating a constitution that recognized three grand divisions of a civilized monarchy; the King as the Chief Executive, the Legislature, and the Judiciary. 29 The Legislative Department of the Kingdom was composed of the King, the House of Nobles, and the House of Representatives, each had a negative on the other. The King represented the vested right of the Government class, the House of Nobles represented the vested right of the Chiefly class, and the House of Representatives represented the vested rights of the Tenant class. The Government was established to protect and acknowledge the rights already declared by the 1839 Declaration of Rights. The Arbitral Tribunal is requested to take judicial notice of the 1840 Constitution.
32. The Constitution generally defined the duties of each branch of government. Civilly, the laws embraced the usual rights and duties of the social relations between the three classes of people, and initiated the internal development of the country with the promotion of industry and commerce. In these laws, the fundamental basis of landed tenure was declared, and cultivation of the soil, under a feudal tenancy not much differing that of ancient Europe, was encouraged by relaxing the vassal service of the Chiefly and Tenant classes.
B. The Organic and Statutory Laws of the State (circa. 1845-1886).33. On June 24, 1845, a Joint Resolution was enacted by the Legislature and signed into law. 30 The Attorney General was called upon to draw up a complete set of the existing laws embracing the organic forms of the different departments, namely, the Executive and Judicial branches. These laws were to outline their duties and modes of procedure. This brought forth the First Act of Kamehameha III to Organize the Executive Ministries, the Second Act of Kamehameha III to Organize the Executive Departments, and the Third Act of Kamehameha III to Organize the Judiciary Department. These Acts came to be known as the Organic Acts of 1845-46. 31 The Arbitral Tribunal is requested to take judicial notice of these three Acts of Kamehameha III.
34. On September 27, 1847, the Legislature passed a law calling upon Chief Justice William L. Lee to establish a Penal Code. 32 In 1850, a Penal Code was submitted to the Legislature by Chief Justice Lee and signed into law by His Majesty King Kamehameha III. The Penal Code had adopted the principles of the English common law. 33 On June 22, 1865, the Judges of the Supreme Court were directed, by an act of the Legislature, to compile and ready to publish the Penal Laws of the Kingdom. 34 The matter required a compilation of the amendments and additions made to the Penal Code since 1850. In 1869 a revised Penal Code was published. 35 The Arbitral Tribunal is requested to take judicial notice of the 1850 and 1869 Penal Codes.
35. In 1851, the Hawaiian Kingdom Legislature passed a resolution calling for the appointment of three commissioners, one to be chosen by the King, one by the House of Nobles, and one by the House of Representatives. 36 The duty of these commissioners was to revise the Constitution of 1840. The draft of the revised Constitution was submitted to the Legislature and approved by both the House of Nobles and the House of Representatives and signed into law by the King on June 14, 1852. 37 By its terms, the Constitution would not take effect until December 6, 1852. The Arbitral Tribunal is requested to take judicial notice of the 1852 Constitution.
36. On April 6, 1853, Alexander Liholiho was named successor to the office of the Constitutional Monarch by His Majesty King Kamehameha III in accordance with Article 25 of the Constitution of 1852. 38 Article 25 provides that the:
"...successor (of the Throne) shall be the person whom the King and the House of Nobles shall appoint and publicly proclaim as such, during the King's life..."37. One year later on December 15th, His Majesty King Kamehameha III passed away and Alexander Liholiho ascended to the office of Constitutional Monarch. 39 He was thereafter called King Kamehameha IV.
38. Since the passage of the Organic Acts of 1845-46, a Joint Resolution was passed by the Legislature and signed into law in 1856, calling upon Prince Lot Kamehameha, Chief Justice William L. Lee, and Associate Justice George M. Robertson to form a committee and prepare a complete Civil Code and to report the same for the sanction of the Legislature in 1858. 40 Pursuant to the resolution, on May 2, 1859, a Civil Code was finally passed by the Legislative Assembly and signed into law on May 17, 1859. 41 Session laws subsequently enacted by the Legislature amended or added to the Civil and Penal Codes. The Arbitral Tribunal is requested to take judicial notice of 1859 Civil Code.
39. The nationality or political status of persons ancillary to the Hawaiian Kingdom are termed Hawaiian subjects. The native inhabitants of the Hawaiian Islands became subjects of the Kingdom as a consequence of the unification of the islands by His Majesty King Kamehameha I at the turn of the 19th century. Since Hawai'i became constitutional, foreigners were capable of becoming Hawaiian nationals either through naturalization or denization. Under the naturalization laws of the Kingdom, foreigners who resided in the Hawaiian Islands for at least five years could apply to the Minister of Interior for naturalization, 42 whereby:
"Every foreigner so naturalized, shall be deemed to all intents and purposes a native of the Hawaiian Islands, be amenable only to the laws of this Kingdom, and to the authority and control thereof, be entitled to the protection of said laws, and be no longer amenable to his native sovereign while residing in this Kingdom, nor entitled to resort to his native country for protection or intervention. He shall be amenable, for every such resort, to the pains and penalties annexed to rebellion by the Criminal Code. And every foreigner so naturalized, shall be entitled to all the rights, privileges and immunities of an Hawaiian subject."40. Denization was a constitutional prerogative of the Office of the Monarch, whereby, a foreigner may have all the rights and privileges of a Hawaiian subject, but is not required to relinquish his allegiance to his native country as is required under naturalization. 43 Denization was "dual citizenship," which was accompanied by an oath of allegiance to the Hawaiian Kingdom. It was reserved to those foreigners who may not have resided in the Kingdom for five years or more, but their services were necessary in the affairs of government both local and abroad. The children of Hawaiian denizens born on Hawaiian territory were considered Hawaiian subjects. Examples of Hawaiian denizens were special envoys who negotiated international treaties and officers serving in the Hawaiian government.
41. On November 30, 1863, His Majesty King Kamehameha IV passed away unexpectedly, and consequently, left the Kingdom without a publicly proclaimed successor. 44 On the very same day, the Kuhina Nui (Premier) in Privy Council publicly proclaimed Lot Kapuaiwa the successor to the Throne, in accordance with Article 25 of the Constitution of 1852. 45 He was thereafter called King Kamehameha V. Article 47, of the Constitution of 1852, provides that:
"whenever the throne shall become vacant by reason of the King's death the Kuhina Nui (Premier) shall perform all the duties incumbent on the King, and shall have and exercise all the powers, which by this Constitution are vested in the King."42. When His Majesty King Kamehameha V ascended to the throne, he had refused to take the oath of office until the Constitution was altered. 46 This refusal was constitutionally authorized by Article 94 of the 1852 Constitution which provided that:
"[t]he King, after approving this Constitution, shall take the following oath..."43. This provision implied a choice to take or not take the oath, which His Majesty King Kamehameha V felt should be constitutionally altered. Another provision of the 1852 Constitution needing alteration was the sovereign prerogative provided in article 45 which stated that:
"[a]ll important business of the Kingdom which the King chooses to transact in person, he may do, but not without the approbation of the Kuhina Nui (Premier). The King and Kuhina Nui (Premier) shall have a negative on each other's public acts."44. This sovereign prerogative allowed the Monarch the constitutional authority to alter or amend laws without Legislative approval. These anomalous provisions needed to be altered along with the instituting of voter qualifications for the House of Representatives. His Majesty King Kamehameha V, in Privy Council, resolved to look into the legal means of convening the first Constitutional Convention.
45. On July 7, 1864, a Convention was called for by His Majesty King Kamehameha V in order to draft a new constitution. 47 The Convention was not comprised of delegates elected by the people with the specific task of altering the constitution, but rather their elected officials serving in the House of Representatives, together with the House of Nobles and the King in Privy Council who would convene in special session. 48 Between July 7 and August 8, 1864, each article in the proposed Constitution was read and discussed until they arrived at Article 62. Article 62 defined the qualification of voters for the House of Representatives. After days of debate over this article, the Convention arrived at an absolute deadlock. The House of Representatives was not able to agree on this article. As a result, His Majesty King Kamehameha V, in exercising his sovereign prerogative by virtue of Article 45 of the constitution, dissolved the convention and proclaimed a new constitution on August 20, 1864. 49 The Arbitral Tribunal is requested to take judicial notice of the 1864 Constitution.
46. In His Majesty King Kamehameha V's speech at the opening of the Legislative Assembly of 1864, he explained his abovementioned action of dissolving the Convention and proclaiming a new constitution. 50 He stated that the:
"...forty-fifth article (of the Constitution of 1852) reserved to the Sovereign the right to conduct personally, in cooperation with the Kuhina Nui (Premier), but without the intervention of a Ministry or the approval of the Legislature, such portions of the public business as he might choose to undertake..."47. This public speech before the Legislative Assembly occurred without contest, and therefore must be construed as a positive statement of the approbation of the Kuhina Nui (Premier) as required by Article 45 of the said Constitution of 1852. However, this sovereign prerogative was removed from the 1864 Constitution, thereby preventing any future Monarch of the right to alter the constitution without the approval of two-thirds of all members of the Legislative Assembly. 51 All articles of the constitution previously agreed upon in convention remained, except for the voter requirements for the House of Representatives. The property qualifications instituted in Articles 61 and 62 were repealed by the Legislature in 1874. 52
48. Contrary to recent historical scholars, the 1864 Constitution did not increase the authority of the Monarch, but rather limited the power of the Monarch formally held under the 1852 Constitution. Under what has been termed the Kamehameha Constitution (1864), the Monarch was now required to take the oath of office and the sovereign prerogative was removed. 53 Also removed was the office of the Kuhina Nui (Premier), which was found to be overlapping with the duties of the Minister of Interior. The bi-cameral nature of the legislative body was also removed. Where once the legislature would formally sit in two distinct Houses (House of Nobles and the House of Representatives), it now was changed to a uni-cameral House where the:
"[l]egislative power of the Three Estates of this Kingdom is vested in the King, and the Legislative Assembly; which Assembly shall consist of the Nobles appointed by the King, and of the Representatives of the People, sitting together."49. On December 11, 1872, His Majesty King Kamehameha V passed away without naming a successor to the office of Constitutional Monarch. 54 As a consequence to the passing of the late King, the Legislative Assembly readied itself to exercise the constitutional authority it possessed to elect, by ballot, a native Chief to be the Constitutional Monarch. Article 22 of the Constitution of 1864 of the Hawaiian Kingdom provides such authority and states:
"..should the Throne become vacant, then the Cabinet Council, immediately after the occurring of such vacancy, shall cause a meeting of the Legislative Assembly, who shall elect by ballot some native Ali'i (Chief) of the Kingdom as Successor to the Throne...".50. On January 8, 1873, William Charles Lunalilo was elected as successor to the office of Constitutional Monarch in accordance with Article 22 of the Constitution of 1864. 55 One year later on February 3rd, 1874, His Majesty King Lunalilo died without naming a successor. 56 The Hawaiian Legislature once again met in special session and elected David Kalakaua to the office of Constitutional Monarch on February 12th, 1874. 57 In accordance with the Constitution, His Majesty's first royal act was to nominate and confirm his younger brother, William P. Leleiohoku, as successor. 58
51. On April 10, 1877, following the death of heir-apparent William P. Leleiohoku, King David Kalakaua publicly proclaimed Lydia Kamaka'eha Dominis to be his successor to the office of Constitutional Monarch in accordance with Article 22 of the Constitution of 1864. 59
52. In 1880, the Legislative Assembly passed an Act to Provide for the Codification and revision of the Laws of the Kingdom. 60 His Majesty's Ministers requested an opinion of the Justices of the Supreme Court, in regard to the 1880 Act, to determine what needed to be done. The Justices stated there was no need to establish another code, but rather a compilation be made of the laws, then in force, and as they stood amended, but without any changes in the words and phrases of statutes. Pursuant to the opinion of the Justices and in accordance with the 1880 Act, a book was published in 1884 entitled the "Compiled Laws of the Hawaiian Kingdom." 61 The Arbitral Tribunal is requested to take judicial notice of 1884 Compiled Laws.
53. On October 16, 1886, the Hawaiian Legislature was adjourned by King David Kalakaua after it met in Legislative session for 129 days. 62 This Legislature was not scheduled to reconvene in Legislative Session until April of 1888. 63 Article 46 of the Constitution of 1864 provides that the:
"...Legislative Body shall assemble biennially, in the month of April, and at such other time as the King may judge necessary, for the purpose of seeking the welfare of the nation."54. In 1887, while the Legislature remained out of session, a minority of subjects of the Hawaiian Kingdom and foreign nationals, which included citizens of the United States, met in a mass meeting to organize a takeover of the political rights of the native population in the Kingdom. 64 These individuals were organized under the name "Honolulu Rifles." On July 1, 1887, these individuals threatened His Majesty King David Kalakaua with bodily harm if he did not accept a new Cabinet Council. 65 On July 7, 1887, a new constitution was forced upon the King by the members of this new cabinet. 66 This new constitution did not obtain the consent nor ratification of the Legislative Assembly who had remained adjourned since October 16, 1886.
55. Under this so-called constitution deriving itself from the Executive branch and not the Legislative branch, a new Legislature was elected while the lawful Legislature remained out of session. The voters, which for the first time included aliens, had to swear an oath to support the so-called constitution before they could vote. The insurgents used the alien vote to offset the majority vote of the aboriginal Hawaiian population, in order to gain control of the Legislative Assembly, 67 while the so-called 1887 constitution provided the self imposed Cabinet Council to control the Monarch. This new Legislature was not properly constituted under the Constitution of 1864, nor the lawfully executed Session Laws of the Legislative Assembly of the Hawaiian Kingdom. 68
56. In spite of the illegal efforts to promulgate this so-called constitution, the 1886 Legislative Assembly did not ratify this so-called constitution pursuant to Article 80 of the 1864 Constitution. Article 80 states:
"Any amendment or amendments to this Constitution may be proposed in the Legislative Assembly, and if the same shall be agreed to by a majority of the members thereof, such proposed amendment or amendments shall be entered on its journal, with the yeas and nays taken thereon, and referred to the next Legislature; which proposed amendment or the next election of Representatives; and if in the next Legislature such proposed amendment or amendments shall be agreed to by two-thirds of all members of the Legislative Assembly, and be approved by the King, such amendment or amendments shall become part of the Constitution of this country."57. Organized resistance by the native subjects of the country resulted in the creation of the Hawaiian Political Party, also known as the Hui Kalai'aina, who protested against the so-called constitution of 1887. 69 Hui Kalai'aina consistently petitioned His Majesty King David Kalakaua to resort back to the 1864 constitution because it was the legal constitution of the Country.70
58. Notwithstanding the extortion of the so-called constitution of 1887, commonly known as the "bayonet constitution," the Constitution of 1864 and the Session laws of the Legislative Assembly enacted since October 16, 1886, still remain in full force and have legal effect in the Hawaiian Kingdom until today. Article 78, of the Constitution of 1864, provides that all:
"...laws now in force in this Kingdom, shall continue and remain in full effect, until altered or repealed by the Legislature; such parts only excepted as are repugnant to this Constitution. All laws heretofore enacted, or that may hereafter be enacted, which are contrary to this Constitution, shall be null and void."59. On January 20, 1891, His Majesty King David Kalakaua passed away in San Francisco, while visiting the United States. 71 His named successor, Lydia Kamaka'eha Dominis, ascended to the office of Constitutional Monarch and was thereafter called Queen Lili'uokalani. On January 14, 1893, in an attempt to counter the effects of the so-called constitution of 1887, Her Majesty Queen Lili'uokalani, drafted a new constitution that embodied the principles and wording of the Constitution of 1864. 72 This draft constitution was not Kingdom law, but remained subject to ratification by two-thirds of all members of the legitimate Legislative Assembly, that had been out of session since October 16, 1886. 73
60. The revolutionaries who actively participated in the extortion of the so-called 1887 constitution were also the same perpetrators affiliated with the unsuccessful revolution of January 17, 1893, which is discussed in Chapter IV of this Memorial. Between 1887 and 1893, the self imposed government officials who were installed under the so-called 1887 constitution became an oligarchy, as they tried to combat the organized resistance within the Kingdom.
C. The Hawaiian Domain.61. On March 16, 1854, in Honolulu, His Excellency Robert C. Wyllie, Minister of Foreign Affairs of the Hawaiian Kingdom, informed: William Miller, Esq., Her British Majesty's Commissioner; M. Louis Emile Perrin, Consul Commissioner and Plenipotentiary of His Imperial Majesty the Emperor of the French; and Honorable David L. Gregg, United States Commissioner, of the islands constituting the Hawaiian domain:
"I have the honor to make known to you that that the following islands, &c., are within the domain of the Hawaiian Crown, viz:
Hawaii, containing about 4,000 square miles; Maui " " 600 " " Oahu " " 520 " " Kauai " " 520 " " Molokai " " 170 " " Lanai " " 100 " " Niihau " " 80 " " Kahoolawe " " 60 " " Nihoa, known as Bird Island. Molokini ) Lehua ) Islets, little more than barren rocks: Kaula ) and all Reefs, Banks and Rocks contiguous to either of the above, or within the compass of the whole." 7462. On May 16, 1854, State Neutrality of the Hawaiian Kingdom was proclaimed by His Majesty King Kamehameha III. The Arbitral Tribunal is requested to take judicial notice of the 1854 Proclamation of Hawaiian neutrality, which stated:
"...that Our neutrality is to be respected by all Belligerents, to the full extent of Our Jurisdiction, which by Our fundamental laws is to the distance of one marine league (three miles), surrounding each of Our Islands of Hawaii, Maui, Kahoolawe, Lanai, Molokai, Oahu, Kauai and Niihau, commencing at low water mark on each of the respective coasts, of said Islands, and includes all the channels passing between and dividing said Islands, from Island to Island..." 7563. Four additional Islands were annexed to the Hawaiian Kingdom domain under the doctrine of discovery subsequent to the reign of His Majesty King Kamehameha III. These islands are as follows:
a. Laysan Island, 800 miles northwest of Honolulu, was annexed to the Hawaiian Kingdom by discovery of Captain John Paty on May 1, 1857, during the reign of His Majesty King Kamehameha IV. 76b. Lisiansky Island, 920 miles northwest of Honolulu, also was annexed by discovery of Captain John Paty on May 10, 1857. 77
c. Palmyra Island, a cluster of low islets, 1,100 miles southwest of Honolulu, was taken possession of by Captain Zenas Bent on April 15, 1862, and proclaimed as Hawaiian Territory in the reign of His Majesty King Kamehameha IV, as per "By Authority" notice in the "Polynesian" newspaper of June 21, 1862. 78
d. Ocean Island, also called Kure atoll, 1,800 miles northwest of Honolulu, was acquired September 20, 1886, as per proclamation of Colonel J.H. Boyd, empowered for such service during the reign of His Majesty King Kalakaua. 79
64. A revised survey of the Hawaiian Islands are as follows: 80
Island Location Square Miles Hawaii 19º 30' N 155º 30' W 4,028.2 Maui 20º 45' N 156º 20' W 727.3 Oahu 21º 30' N 158º 00' W 597.1 Kauai 22º 03' N 159º 30' W 552.3 Molokai 21º 08' N 157º 00' W 260.0 Lanai 20º 50' N 156º 55' W 140.6 Niihau 21º 55' N 160º 10' W 69.5 Kahoolawe 20º 33' N 156º 35' W 44.6 Nihoa 23º 06' N 161º 58' W 0.3 Molokini 20º 38' N 156º 30' W 0.04 Lehua 22º 01' N 160º 06' W 0.4 Ka'ula 21º 40' N 160º 32' W 0.2 Laysan 25º 50' N 171º 50' W 1.6 Lisiansky 26º 02' N 174º 00' W 0.6 Palmyra 05º 52' N 162º 05' W 4.6 Ocean 28º 25' N 178º 25' W 0.4 (a.k.a. Kure atoll) TOTAL: 6,427.74 square miles 65. The Islands comprising the domain of the Hawaiian Kingdom, together with its three mile territorial seas surrounding each island, are located in the Pacific Ocean between 5º and 23º north latitude and 154º and 178º west longitude. 81 The Arbitral Tribunal is requested to take judicial notice of the islands constituting the Hawaiian domain.
CHAPTER II. Hawaiian Land Tenure.66. To aid the Tribunal in better understanding Hawaiian real property and its relationship to the private interests of individuals and the corporate rights of the State, this chapter will provide a general overview of the evolution of Hawaiian land tenure.
67. In Bouvier's Law Dictionary, an estate is defined as "the degree, quantity, nature and extent of interest which a person has in real property." 82 Therefore, an estate in lands signifies the interest of the person in the property claimed. This is referred to as the status upon which an owner stands in regard to their tenement. To measure this interest, Sir William Blackstone states that:
"estates may be considered in a three-fold view: first, with regard to the quantity of interest which the tenant has in the tenement: secondly with regard to the time at which that quantity of interest is to be enjoyed: and thirdly with regard to the number and connexions of the tenants." 8368. These interests are divided into two types of Estates, Freehold and less than Freehold. 84 Estates of Freehold are further divided into estates of inheritance, (namely fee-tail and fee-simple), and estates not of inheritance, (namely life estates). 85 Estates less than freehold are leasehold or rent. 86
69. In all cases, Kamehameha I was the original and sole possessor of the freehold estate of inheritance, namely fee-tail. 87 As the constitution of 1840 states, in part, that:
"Kamehameha I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though 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. Wherefore, there was not formerly, and is not now any person who could convey away the smallest portion of land without the consent of the one who had, or has the direction of the kingdom. These are the persons who have had the direction of it from that time down, Kamehameha II, Ka`ahumanu I, and at the present time Kamehameha III."70. The ancient system of land titles in the Hawaiian Islands, was entirely different from that of tribal ownership prevailing in New Zealand, and from the village or communal system of Samoa, but bore a remarkable resemblance to the feudal system that prevailed in Europe during the Middle Ages. 88
"The tenures were in one sense feudal, but they were not military, for the claims of the superior on the inferior were mainly either for produce of the land or for labor, military service being rarely or never required of the lower orders. All persons possessing landed property, whether superior landlords, tenants or sub-tenants, owed and paid to the King not only a land tax, which he assessed at pleasure, but also, service which was called for at discretion, on all the grades, from the highest down. They also owed and paid some portion of the productions of the land, in addition to the yearly taxes. They owed obedience at all times. All these were rendered not only by natives, but also by foreigners who received lands from Kamehameha I and Kamehameha II, and...a failure to render any of these has always been considered a just cause for which to forfeit the lands. It is therefore certain that the tenure was far from being allodial (inheritable), either in principle or practice...The same rights which the King possessed over the superior landlords and all under them, the several grades of landlords possessed over their inferiors, so that there was a joint ownership of the land; the King really owning the allodium (inheritance), and the person in whose hands he placed the land, holding it in trust." 89A. Establishing a Board of Commissioners to Quiet Land Titles71. On December 10th, 1845, the Hawaiian Kingdom, by its Legislative Assembly, initiated the necessary steps toward offering all subjects inheritable estates. Such steps would provide security in land holdings and help develop and foster the economic growth of the country. The first step was to establish a Board of Commissioners to Quiet Land Titles (also known as the Land Commission) under the Second Act of Kamehameha III to organize the Executive Departments of the Hawaiian Islands. 90 Section 1 of the Act establishing the Land Commission stated:
"His Majesty shall appoint, through the Minister of Interior, and upon consultation with the Privy Council, five commissioners, one of whom shall be the Attorney-General of this Kingdom, to a board for the investigation and final ascertainment or rejection of all claims of private individuals, whether natives or foreigners, to any landed property acquired anterior (prior) to the passage of this Act."72. Before inheritable estates could be offered by the Hawaiian Government after the 10th day of December, 1845, without affecting any prior existing rights in the land, an inventory of all claims to land titles throughout the islands, acquired before the 10th day of December, 1845, had to be made. All fee-simple titles, life estates or leases, needed to be validated or invalidated by an authorized and competent party (i.e. the Land Commission). 91 Section 10 of the same Act states that the:
"...Minister of Interior shall have power in concurrence with the Privy Council, and under the sanction of His Majesty, to issue to any lessee or tenant for life of lands so confirmed, being a Hawaiian subject, a patent in fee-simple for the same, upon payment of a commutation to be agreed upon by His Majesty in Privy Council."73. Under §7, article II, chapter VII, part I of the Second Act of Kamehameha III to organize the Executive Departments of the Hawaiian Islands, conditions and restrictions were placed upon title to land in the Hawaiian Islands as follows:
"Land so patented shall never revert to the king of these islands, nor escheat to this government, for any other cause than attainder of high treason, as defined in the criminal code, nor be diverted from the patentee or his assigns, except by operation of law under sale in virtue of a judicial decree, or for the non-payment of taxes as prescribed in the third part of this act, or the utter default of heirs of the testate or intestate owners, being Hawaiian subjects, as in the fifth part of this act prescribed; but the patented lands shall descend to the lineal or collateral heirs, being Hawaiians, of the patentee and his assigns, as tenants in common, unless otherwise prescribed by the will of a testate patentee." 9274. Foreign nationals were not allowed to acquire fee-simple titles to land at this time. Subsequently, this restriction was removed by an "Act to Abolish the disabilities of Aliens to acquire and convey lands in fee-simple," passed by the Hawaiian Legislature on the 10th day of July, 1850. 93
75. On August 20th, 1846, the Land Commission drew up certain principles that would guide them in the adjudication of each claim submitted before them. 94 The Land Commission arrived at these principles by careful examination of numerous witnesses; among whom were some of the oldest chiefs. These chiefs possessed large tracts of land, which equally with other lands, came under the adjudication of the Land Commission, and the principles that were about to be laid down. The principles continue to state, in part, that the:
"King (Government), in disposing of the allodium, should offer it first to the superior lord, that is, to the person who orginally received the land in trust from the King; since by doing so, no injury is inflicted on any of the inferior lords or tenants, they being protected by law in their rights as before; and most obviously the King could not dispose of the allodium to any other person without infringing on the rights of the superior lord. But even when such lord shall have received an allodial title from the King by purchase or otherwise, the rights of the tenants and sub-tenants must still remain unaffected, for no purchase, even from the Sovereign himself, can vitiate the rights of third parties...It being therefore fully established, that there are but three classes of persons having vested rights in the land -- 1st, the Government, 2nd, the landlord, and 3rd, the (native) tenant, it next becomes necessary to ascertain the proportional rights of each."B. The Great Land Division of the Konohiki (Landlords) of the Realm (circa. 1848).76. In addition to the investigation by the Land Commission, the subject of formulating an instrument to divide out the undivided rights in the land, was discussed at length in the King's Privy Council on December 11th, 1847. 95 Before the formal discussion ensued, it was noted that the legislature resolved that there are the following classes of rights inherent in all lands, 1st, the Government, 2nd, the Konohiki (Landlord), and 3rd, People or Tenants. 96 It also became obvious that the King held a dual role. At one end, he was the chief executive or head of state of the Government, and on the other, he was the Great Feudal Chief of all the landlords.
77. On December 18th, 1847, seven rules, were introduced by William L. Lee, Chief Justice of the Hawaiian Kingdom Supreme Court, and unanimously voted upon and passed by the King and his Privy Council. 97 With these rules the King in Privy Council resolved to effect, through the assistance of a Committee, a division of lands between the Konohikis (Landlords) of the Kingdom. On March 7th, 1848, this division was completed. 98 This process came to be known as the Great Mahele of 1848. His Majesty King Kamehameha III resumed possession of the larger part of the lands as a Konohiki (Landlord) life estate. The balance of lands were granted to the other Konohikis (Landlords) as freehold life estates certified to the Land Commission for its formal award. Both Kamehameha III's life estate and the other Konohikis' life estates were capable of being converted into inheritable estates, by payment to the Government of a commutation. Such commutation was fixed in the Privy Council. 99 All interests were subject to the rights of native tenants to divide their vested interest in fee-simple. 100
78. As a result of the Great Mahele of 1848, the ancient rights in the land held by the Konohiki (Landlord), and the common people, as native tenants, were incorporated and protected under Kingdom law. Under the laws and the conditions of the Great Mahele, native tenants were capable of acquiring fee-simple titles from the Government or Konohiki (Landlord) whenever they desired. Subsequent laws enacted by the Hawaiian Legislative Assembly further evolved the Hawaiian land tenure system and consequently defined the corporate rights of the State over real property. By 1886, the Hawaiian Kingdom had enacted specific laws on transferance and conditions of title, probate proceedings, and heirship rights.
79. Under Chapter II, Article I of the Second Act of Kamehameha III to organize the Executive Departments, a Registry of Conveyances was established to record the subsequent conveyances of confirmed claims by the Land Commission. 101 This Registry also recorded the subsequent grants of titles, mortgages, bills of sale of chattel property, contracts and agreements, articles of marriage settlement, certificates of co-partnership, powers of attorney, and all other instruments affecting the transactions of persons in the kingdom.
CHAPTER III. 1843 Provisional Cession to Great Britain and
the Ultimate Recognition of Hawaiian Independence.80. To counter the strong possibility of foreign encroachment on Hawaiian territory, His Majesty King Kamehameha III dispatched a Hawaiian delegation to the United States and Europe with the power to settle difficulties with other nations, and negotiate treaties. This delegation's ultimate duty was to secure the recognition of Hawaiian Independence from the major powers of the world. In accordance with this goal, Timoteo Ha'alilio, William Richards and Sir George Simpson were commissioned as joint Ministers Plenipotentiary on April 8, 1842. 102 Sir George Simpson, shortly thereafter, left for England, via Alaska and Siberia, while Mr. Ha'alilio and Mr. Richards departed for the United States, via Mexico, on July 8, 1842. 103
81. On December 19, 1842, the Hawaiian delegation, while in the United States of America, secured the assurance of United States President Tyler that the United States would recognize Hawaiian independence. 104 The delegation then proceeded to meet their colleague, Sir George Simpson, in Europe and together they secured formal recognition from Great Britain and France. On April 1, 1843, Lord Aberdeen on behalf of Her Britannic Majesty Queen Victoria, assured the Hawaiian delegation that:
"Her Majesty's Government was willing and had determined to recognize the independence of the Sandwich Islands under their present sovereign."82. On November 28, 1843, at the Court of London, the British and French Governments entered into a formal agreement for the recognition of Hawaiian independence. 106 The Arbitral Tribunal is requested to take judicial notice of 1843 Anglo-Franco Proclamation. The Proclamation read as follows:
"Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the King of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations, have thought it right to engage, reciprocally, to consider the Sandwich Islands as an Independent State, and never to take possession, neither directly or under the title of Protectorate, or under any other form, of any part of the territory of which they are composed.
The undersigned, Her Majesty's Principal Secretary of State of Foreign Affairs, and the Ambassador Extraordinary of His Majesty the King of the French, at the Court of London, being furnished with the necessary powers, hereby declare, in consequence, that their said Majesties take reciprocally that engagement."83. While the Hawaiian delegation was securing the recognition of Hawaiian Independence by these three major world powers, His Majesty King Kamehameha III was forced to provisionally cede Hawaiian sovereignty to the British Government under threat of an over zealous commanding officer of Her Britannic Majesty's Royal Navy. The Arbitral Tribunal is requested to take judicial notice of the events surrounding Lord Paulet and the provisional cession of the Hawaiian Kingdom to the Her Majesty the Queen of England. Here follows those turbulent events that coincided with the recognition of Hawaiian Independence.
84. On February 11, 1843, H.B.M.S. Carysfort, commanded by Lord George Paulet, entered Honolulu harbor on the island of O'ahu. 107 Lord Paulet had previously received a complaint by Richard Charlton, British Consul to the Hawaiian Kingdom. This complaint alleged that British subjects were being abused by the Hawaiian Government in the islands. Without investigating the circumstances nor the validity of the complaint by Consul Charlton, Lord Paulet proceeded into the harbor without firing the customary salute with the Honolulu Fort. Consul Charlton was absent from the Kingdom, but his temporary replacement, Alex Simpson, was not afforded diplomatic recognition by the Hawaiian Government. 108
85. Upon arrival, Lord Paulet, demanded a personal interview with His Majesty King Kamehameha III, but it was denied. 109 Lord Paulet was then referred to Dr. Gerrit P. Judd because in case of business of a private nature, protocol dictated that as:
"...our confidential agent to confer with you, who, being a person of integrity and fidelity to our Government, and perfectly acquainted with all our affairs, will receive your communication, give you all the information you require (in confidence), and report the same to us." 11086. The above actions brought about the following response from Lord Paulet of February 17, 1843 to His Majesty King Kamehameha III, with an attached letter of demands:
"Sir: - In answer to your letter of this day's date (which I have too good an opinion of your Majesty to allow me to believe ever emanated from yourself, but from your ill advisers), I have to state that I shall hold no communication whatever with Dr. G.P. Judd, who, it has been satisfactorily proved to me, has been the punic mover in the unlawful proceedings of your Government against British subjects.
As you have refused me a personal interview, I inclose you the demands which I consider it my duty to make upon your Government, with which I demand a compliance at or before 4 o'clock p.m., to-morrow (Saturday); otherwise I shall be obliged to take immediate coercive steps to obtain these measures for my countrymen.Demand made by the Right Honorable Lord George Paulet, captain, R.N., commanding Her Britanic M. Ship Carysfort, upon the King of the Hawaiian Islands.
First. The immediate removal by public advertisement, written in the native and English languages, and signed by the governor of this island and F.W. Thompson, of the attachment placed upon Mr. Charlton's property, the restoration of the land taken by the Government for its own use and really appertaining to Mr. Charlton, and reparation for the heavy loss to which Mr. Charlton's representatives have been exposed by the oppressive and unjust proceedings of the Sandwich Island Government.
Second. The immediate acknowledgment of the right of Mr. Simpson to perform the functions delegated to him by Mr. Charlton, namely, those of Her Britannic Majesty's acting consul until Her Majesty's pleasure be known upon the reasonableness of your objections to him, the acknowledgment of that right and the reparation for the insult offered to Her Majesty through her acting representative, to be made by a public reception of his commission and the saluting the British flag with twenty-one guns, which number will be returned by Her Britannic Majesty's ship under my command.
Third. A guarantee that no British subject shall in future be subjected to imprisonment in fetters, unless he is accused of a crime which by the laws of England would be considered a felony.
Fourth. The compliance with a written promise given by King Kamehameha to Capt. Jones, of Her Britannic Majesty's Ship Curacoa, that a new and a fair trial would be granted in a case brought by Henry Skinner, which promise has been evaded.
Fifth. The immediate adoption of firm steps to arrange the matters in dispute between British subjects and natives of the country or others residing here, by referring these cases to juries, one half of whom shall be British subjects, approved of by the consul, and all of whom shall declare an oath their freedom from prejudgment upon or interest in the case brought before them.
Sixth. A direct communication between His Majesty Kamehameha and Her Britannic Majesty's acting consul for the immediate settlement of all cases of grievance and complaint on the part of British subjects against the Sandwich Island government." 11187. In order to give strength to the foregoing demands, the following note was sent to Capt. Long, of the U.S.S. Boston.
"SIR: I have the honor to notify you that Her Britannic Majesty's ship Carysfort, under my command, will be prepared to make an immediate attack upon this town at 4 p.m. to-morrow (Saturday) in the event of the demands now forwarded by me to the King of these islands not being complied with by this time." 11288. On the following day, His Majesty King Kamehameha III and the Premier sent the following response to Lord Paulet's demands.
"We have received your letter and the demands which accompanied, and in reply would inform your lordship that we have commissioned Sir George Simpson and William Richards as our ministers plenipotentiary and envoys extraordinary to the court of Great Britain, with full powers to settle the difficulties which you have presented before us; to assure Her Majesty the Queen of our uninterrupted affection and confer with her ministers as to the best means of cementing the harmony between us.
Some of the demands which you have laid before us are of a nature calculated seriously to embarrass our feeble Government, by contravening the laws established for the benefit of all. But we shall comply with your demands as it has never been our intention to insult Her Majesty the Queen or injure any of her estimable subjects; but we must do so under protest, and shall embrace the earliest opportunity of representing our case more fully to Her Britannic Majesty's Government through our Ministery.
Trusting in the magnanimity of the sovereign of a great nation, which we have been taught to respect and love, that we shall there be justified." 11389. The concession to Lord Paulet's demands, under protest, was to avoid injury to life and property. The first impulse of His Majesty King Kamehameha III and his principle Chiefs was to resist. Attached to this concession was the following protest:
"We, Kamehameha 3d, King of all the Sandwich Islands, and Kekauluohi, Premier, thereof, in accordance with the laws of all nations and the rights of all aggrieved sovereigns and individuals, do hereby enter our solemn act of Protest before God, the world, and before the government of Her Most Gracious Majesty Victoria the First, Queen of the United Kingdoms of Great Britain and Ireland, --
Against the Rt. Honorable Lord George Paulet, Captain of H.B.M. Ship Carysfort, now lying in the Harbor of Honolulu, for all losses and damages which may accrue to us, and to the citizens of other countries residing under our dominions and sovereignty, in consequence of the unjust demands made upon us this day by the said Rt. Hon. Lord George Paulet, enforced by a threat of coercive measures and an attack upon our town of Honolulu in case of non-compliance with the same within a period of nineteen hours; thereby interfering with our laws, endangering the good order of society, and requiring of us what no Power has a right to exact of another with whom they are on terms of peace and amity. And We do solemnly Protest and declare that We, the sovereign authority of these Our Islands, are injured, abused and damaged by this act of the said Rt. Hon. Lord George Paulet, and we hereby enter our solemn appeal unto the Government of Her Most Gracious Majesty, represented by him, for redress, for justification, and for repayment of all said losses, damages, and payments which may in consequence accrue unto us, or unto the citizens of other countries living under our jurisdiction." 11490. During this time, three of the major world powers were Great Britain, France and the United States. It was contemplated that the King should provisionally cede the islands to France, or to France and the United States, jointly; but, upon the advice of Dr. Judd, it was provisionally ceded to Great Britain, subject to the decision of Her Majesty's government upon receipt of full information from both the Hawaiian Kingdom and Lord Paulet. Arrangements were made to have the "fact finding" to take effect on February 25, 1843. 115
91. On the 25th of February, at three o'clock p.m., His Majesty King Kamehameha III delivered the following speech from the ramparts of the Honolulu Fort.
"Where are you, chiefs, people and commons from my ancestor, and people from foreign lands!
Hear ye! I make known to you that I am in great perplexity by reason of difficulties into which I have been brought without cause; therefore, I have given away the life of our land, hear ye! But my rule over you, my people, and your privileges will continue, for I have hope that the life of the land will be restored when my conduct is justified." 11692. The Act of Provisional Cession was then read.
"In consequence of the difficulties in which we find ourselves involved, and our opinion of the impossibility of complying with the demands in the manner in which they are made by Her Britannic Majesty's representative upon us, in reference to the claims of British subjects, we do hereby cede the group of islands known as the Hawaiian (or Sandwich) Islands, unto the Right Honorable Lord George Paulet, captain of Her Majesty's Ship of war Carysfort, representing Her Majesty, Victoria, Queen of Great Britain and Ireland, from this date, and for the time being: the said cession being made with the reservation that it is subject to any arrangements that may have been entered into by the Representatives appointed by us to treat with the Government of her Britannic Majesty; and in the event that no agreement has been executed previous the date hereof; subject to the decision of Her Britannic Majesty's Government on conference with the said representatives appointed by us; or in the event of our representatives not being accessible, or not having been acknowledged, subject to the decision which Her Britannic Majesty may pronounce on the receipt of full information from us, and from the Right Honorable Lord George Paulet." 11793. Following was read the Proclamation of Lord Paulet.
"A provisional cession of the Hawaiian or Sandwich Islands having been made this day by Kamehameha III., King, and Kekauluohi, Premier thereof, unto me, the Right Honorable Lord George Paulet, commanding Her Britannic Majesty's ship Carysfort on the part of Her Britannic Majesty, Victoria, Queen of Great Britain and Ireland; subject to arrangements which may have been made or shall be made in Great Britain, with the Government of Her Britannic Majesty, I do hereby proclaim,
First. That the British Flag shall be hoisted on all the Islands of the group, and the natives thereof shall enjoy the protection and privileges of British subjects.
Second. That the government thereof shall be executed, until the receipt of communications from Great Britain, in the following manner, namely: By the native King and chiefs and the officers employed by them, so far as regards the native population, and by a commission, consisting of King Kamehameha III, or a Deputy appointed by him, the Right Honorable Lord George Paulet, Duncan Forbes Mackay, esquire, and Lieut. Frere, R.N., in all that concerns relations with other powers (save and except the negotiations with the British Government), and the arrangements among foreigners (others than natives of the Archipelago) resident on these Islands.
Third. That the laws at present existing or which may be made at the ensuing council of the king and the chiefs (after being communicated to the commission), shall be in full force so far as natives are concerned; and shall form the basis of the administration of justice by the commission in matters between foreigners resident on these islands.
Fourth. In all that relates to the collection of the revenue, the present officers shall be continued at the pleasure of the native King and chiefs, their salaries for the current year being also determined by them, and the archives of Government remaining in their hands; the accounts are, however, subject to inspection by the commission heretofore named. The Government vessels shall be in like manner subject, however, to their employment if required for Her Britannic Majesty's service.
Fifth. That no sales, leases, or transfers of land shall take place by the action of the Commission appointed as aforesaid, nor from natives to foreigners during the period intervening between the 24th of this month and the receipt of notification from Great Britain of the arrangements made there; they shall not be valid, nor shall they receive the signatures of the King or premier.
Sixth. All the existing bona fide engagements of the native King and premier, shall be executed and performed as if this cession had never been made." 11894. With the formal provisional cession complete, the Hawaiian flag was lowered from its staff by the hands of Hawaiian soldiers. The British flag then took its place, hoisted by a Lieutenant from the Carysfort, and His Majesty King Kamehameha III returned to Lahaina, Island of Maui, seat of the Hawaiian capital city. 119 With the establishment of the aforesaid Commission, Mr. Simpson's function, as Acting Consul, ceased. Mr. Simpson was selected by Lord Paulet to deliver the dispatches to the British government in order to apprise them of the situation. Mr. Simpson was scheduled to leave on the schooner Ho'oikaika, renamed the Albert, enroute to San Blas Mexico, seat of the British Vice Consulate, and meet with Vice Consul Barron. 120
95. Unbeknownst to Lord Paulet and Mr. Simpson, Dr. Judd had secured the commitment of General J.F.B. Marshall to serve as His Majesty King Kamehameha's Special Envoy to bear dispatches to the United States Government and Commissioner to the Courts of England and France. 121 General Marshall was to travel on the same vessel as Mr. Simpson under the cover of being supercargo for a Hawaiian trading firm known as Ladd & Company. In order to commission the special envoy at Honolulu, His Majesty King Kamehameha III made a secret voyage from Maui. His Majesty landed at night at Waikiki on the island of O'ahu, commissioned the special envoy and departed back to Maui before dawn. 122
96. On March 11, 1843, the Albert left Honolulu harbor under the command of a British officer from the Carysfort and arrived at San Blas, Mexico on April 10th. 123 From San Blas, both Mr. Simpson and General Marshall traveled a day's journey to Tepec where they were received by the British Vice Consul, Mr. Barron. Mr. Simpson was first to meet the Vice Consul. Mr. Simpson relayed his version of the cession of the Hawaiian Islands as being voluntary. General Marshall, meanwhile, requested a private session with the Vice Consul under the guise of business for Ladd & Company. During this session, General Marshall laid out the dispatches, together with his credentials, and a copy of the conditional protest. 124 Together the evidence showed a very different version of what had happened in the Hawaiian Islands. The dispatches of both Mr. Simpson and General Marshall were forwarded to Rear Admiral Thomas, Commander in Chief of Her Britannic Majesty's Ships and Vessels in the Pacific. 125
97. Back in the Hawaiian Islands, the Commission ran into many difficulties amongst the Hawaiian delegation. The delegation's head, Dr. Judd, and the French Consul refused to recognize the new Government. 126 Dr. Judd, appointed by His Majesty King Kamehameha III as his deputy, found that he could not work on the Commission. Dr. Judd later received authorization by His Majesty to resign as follows:
"We therefore publicly make known that we, Kamehameha III., the King, fully approve and acknowledge the Protest and withdrawal of our deputy as our own, and declare that we will no more sit with the British commissioners, or be responsible for any acts of theirs which may encroach upon the rights of foreigners.
The Rt. Hon. Lord George Paulet and his Lieutenant John Frere, having enlisted soldiers under the title of "the Queen's Regiment," maintaining them as a standing army out of funds appropriated by us for the payment of our just debts, which expense we consider quite uncalled for and useless; they having enforced their demand for the payment of the money by a threat of deposing from his trust an officer of the treasury, although contrary to the orders of the King and premier to him, made known to the British Commissioners;
By these oppressions, by the trial of natives for alleged offenses against the native Government, cases which come not properly under their cognizance, and by their violating the laws which, by the treaty, were to have been held sacred until we hear from England; we are oppressed and injured, and feel confident that all good men will sympathize with us in our present state of distress; and now we protest in the face of all men against all such proceedings both towards ourselves and foreigner, subjects of other governments, on the part of the Rt. Hon. Lord George Paulet, captain of H.B. Ship Carysfort, and his lieutenant, John Frere, R.N., and take the world to witness that they have broken faith with us." 12798. So grave were the decisions of the two man Commission, that a protest was lodged also by the Commander-in-Chief of the United States Naval Force in the E. Indies, Lawrence Kearney. The protest read:
"In the name and on behalf of the people of the United States of America and their Government, which the undersigned has the honor to represent, and in order to explain clearly for the information of all concerned is issued, a Protest.
Whereas, a provisional cession of the Hawaiian or Sandwich Islands was made by His Majesty Kamehameha III and Kekauluohi, premier thereof, unto the Hon. George Paulet, commanding Her Britannic Majesty's Ship Carysfort (to wit) on the 25th day of February, 1843; and whereas, the United States' interests and those of their citizens resident on the aforesaid Hawaiian Islands are deeply involved in a seizure of His Majesty's Government under the circumstances; as well as in the act of the aforesaid King and premier, acceding thereto under protest or otherwise, to affect the interests before cited: Now, therefore, be it known, that I solemnly protest against every act and measure in the premises; and do declare that from and after the day of said cession until the termination of the pending negotiations between His Majesty's envoys and the Government of Her Britannic Majesty, I hold His Majesty Kamehameha III and Capt. Lord George Paulet answerable for any and every act, by which a citizen of the United States resident as aforesaid shall be restrained in his just and undisputed rights and privileges, or who may suffer inconvenience or losses, or be forced to submit to any additional charges on imports or other revenue matters, or exactions in regard to the administration of any municipal laws whatever enacted by the 'Commission' consisting of His Majesty King Kamehameha III, or his deputy of the aforesaid islands, and the Right Hon. Lord George Paulet, Duncan Forbes Mackay, esq., and Lieut. John Frere, R.N." 12899. Lord Paulet's Commanding Officer, Rear Admiral Thomas, arrived at Honolulu harbor on July 26, 1843 on H.B.M.S. Dublin from Valparaiso, Chile. 129 Not pleased with the actions of one of his officers, Admiral Thomas immediately sought an interview with His Majesty King Kamehameha III., which resulted in an apology from Admiral Thomas, and the restoration of Hawaiian sovereignty on the 31st of July, 1843. 130 Admiral Thomas' actions met with the approval of the British Government as stated in the following letter, dated June 13, 1844, from Lord Canning to Lord Herbert. In relation to Admiral Thomas' course of action, the letter stated as follows:
"I am directed by the Earl of Aberdeen to acknowledge the receipt of your letter of the 7th inst. enclosing copies of Rear Admiral Thomas' correspondence with the Admiralty, dated the 17th of February, from the Sandwich Islands; and I am to request that you will state to the Lords Commissioners of the Admiralty, that Her Majesty's Government have received with the highest satisfaction the whole of Admiral Thomas' proceedings at the Sandwich Islands, as marked by great propriety and admirable judgment throughout, and as calculated to raise the character of the British authorities for justice, moderation, and courtesy of demeanor, in the estimation of the natives of those remote countries, and of the world." 131100. As a result of the recognition of the Hawaiian Kingdom as an Independent State, by the United States in 1842 and by the 1843 Anglo-Franco Proclamation, the first United States Commissioner to the Hawaiian Islands, Mr. Brown, arrived in the Hawaiian Kingdom. 132 Thereafter on February 3, 1844, General William Miller arrived in the islands as the British Consul-General on board H.B.M.S. Hazard from Mazatlan, Mexico. 133 Mr. Robert Crichton Wyllie, Esq., also arrived as Consul-General Miller's secretary. Mr. Wyllie would later become a Hawaiian denizen and serve on His Majesty King Kamehameha III's Cabinet as Minister of Foreign Affairs. 134
A. Commercial Treaties and Conventions concluded
between the Hawaiian Kingdom and other World Powers.101. As an expression of the Hawaiian Kingdom's independent statehood, divers treaties and conventions were concluded that engaged in (a) commercial trade, under the most favored nation status, (b) established consular affairs and the protection of the rights of citizens or subjects of foreign states while within the territory of the Hawaiian Kingdom, and (c) afforded the protection of the rights of Hawaiian subjects in territories of foreign states. Existing commercial treaties and conventions with the Hawaiian Kingdom are as follows:
1. Belgium102. On October 4, 1862, a Treaty was signed between Belgium and the Hawaiian Kingdom in Brussels and thereafter ratified by both governments. 135 The Arbitral Tribunal is requested to take judicial notice of 1862 Hawaiian-Belgian Treaty. Article IV of this treaty provides:
"[t]he respective citizens of the two countries shall enjoy the most constant and complete protection for their persons and property. Consequently they shall have free and easy access to the court of justice in the pursuit and defense of their rights in every instance and degree of jurisdiction established by the laws."103. Neither Belgium nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the terms of Article XXVII of the 1862 Treaty. Therefore this treaty is still in full force, continues to have legal effect until today, and is at all times relevant to these proceedings.
104. According to international law, former Belgian territories, who acquired their independence from Belgium are bound, or at least, entitled to accede to the rights and obligations arising from the Hawaiian-Belgian Treaty as of 1893. 136 A former Belgian territory is:
105. On August 7, 1851, a Treaty was signed between the Free Hanseatic City of Bremen and the Hawaiian Kingdom in Honolulu and thereafter ratified by both governments. 138 The Arbitral Tribunal is requested to take judicial notice of 1851 Hawaiian-Bremen Treaty. Article II of this treaty provides:
"[t]he citizens of Bremen residing within the dominions of the King of the Hawaiian Islands, shall enjoy the same protection in regard to their civil rights, as well as to their persons and properties, as native subjects; and the King of the Hawaiian Islands engages to grant to the citizens of Bremen, the same rights and privileges which now are, or may hereafter be granted to, or enjoyed by any other foreigners, subjects of the most favored nation."106. Neither Bremen nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the principles of customary international law. Therefore this treaty is still in full force, continues to have legal effect until today, and is at all times relevant to these proceedings. The succeeding State to the Hawaiian-Bremen Treaty of 1851 is Germany. 139
3. Denmark107. On October 19, 1846, a Treaty was signed between Denmark and the Hawaiian Kingdom in Honolulu and thereafter ratified by both governments. 140 The Arbitral Tribunal is requested to take judicial notice of 1846 Hawaiian-Danish Treaty. Article II of this treaty provides:
"[t]he subjects of His Majesty the King of Denmark, residing within the dominions of the King of the Hawaiian Islands, shall enjoy the same protection in regard to their civil rights as well as to their persons and properties, as native subjects; and the King of the Hawaiian Islands engages to grant to Danish subjects the same rights and privileges which now are, or may hereafter be, granted to or enjoyed by any other foreigners, subjects of the most favored nation."108. Neither Denmark nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the principles of customary international law. Therefore, this treaty is still in full force, continues to have legal effect until today, and is at all times relevant to these proceedings.
109. According to international law, former Danish territories, who acquired their independence from Denmark are bound, or at least, entitled to accede to the rights and obligations arising from the Hawaiian-Danish Treaty as of 1893. 141 A former Danish territory is:
1. Iceland. Independence: June 7, 1944.