The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-09-25
Extracts from Judgment of the Supreme
Court as to the Successor to Crown Lands.

court as TO the successor TO CrOWn Lauus-
The following extracts from the Judgment Of
the Supreme Court, given on 9th May, 1864,
" In the matter of the estate of His Majesty
Kamehameha w." refer to the legal disposition
of that part of the estate known as the Crown
Lands.
"The claim to the entire estate as an appanage
Of the Grown put forward by the Attorney Gen
eral on behalf of His Majesty the present KING is
made to rest chiefly on the construction which 1t
is contended should be given to the Statnte passed
on the 7th day of June, entitled, - An Act relat-
ing to the lands of His Majesty the King and OF
the Government" The preamble to that Act
and the portions of it which bear upon the case
read as follows =
Whereas, 1t hath pleased His Most Gracious
Majesty Kamehameha III, the King, after re-
serving certain lands to himself as his own
private property, to surrender and forever make
over unto his chiefs and people the greater por-
ton Of his royal domain
And whereas, 1t has pleased our Sovereign
Lord the King to place the lands SO made over to
his chiefs and people in the keeping of the House
of Mobiles and Representatives, or such person or
persons as they may from time to time appoint,
to be disposed Of in such a manner as the House
of Mobiles and Representatives may direct, and as
may best promote the prosperity OF this kingdom
and the dignity Of the Hawaiian Crown there
fore,
Be it enacted by the House of Mobiles and
Representatives of the Hawaiian Islands in Legis-
lative Council assembled, E.
That, expressing our deepest thanks 70 His
Majesty for this noble and truly royal gift, We
do hereby solemnly confirm this great Act Of our
good King, and declare the following lands, viz.
There follow the names of the several landsl =
to be the private lands of His Majesty Kameha-
meha Ill, to have and to hold to himself, his
heirs and successors forever and said lands shall
~ --A 1s.->.A IF naAalr-- 90 HE
royal will and pleasure, subject only to the rights
Of tenants. a y ..F.H
AFTER the foregoing follows the acceptance by
the Legislature oil the lands made over by the
King to the Hawaiian Government, the lands
being mentioned by name.
o It is contended by the Attorney General that
by the true construction of this Act, it must be
understood as declaring that the lands reserved to
himself by Kamehameha Ill. in the grand divi-
sion of l848, were to descend forever to his heirs
and successors on the throne, as a Royal Domain
annexed to the Hawaiian Crown, and that they
are not subject even to the right of dover.
On the other hand it il argued that by a fair
construction of the Act taken in connection with
the instrument of reservation signed and sealed
by Kamehameha LII. on the 9Th day OF March.
1S4S, of which the Act of the Legisla tive Coun-
Gil was simply a confirmation, the lands in ques-
ton were declared to be the private property OF
Kamehameha ILL.,, his heirs and assigns that as
such, they are not only subject to the right of
dover but distributable under the Statute regu-
lating the descent Of property generally like other
private estates Of persons dying interstate, and
that therefore Her Majesty Queen Emma, in the
absence of any lineal heir of her husband, the
late King is entitled to one half OF the. estate
under the peculiar provisions of Hawaiian law
which would pass the other half to His Royal
Highness NJ. Kekuanaoa, the father of their late
Maiesties Kamehameha Nv. and V.
The view which the Court takes Of this matter
after q most careful examination and reflection,
agrees IN some respects with the views 80 ably
propounded by the learned counsel for both the
royal claimants, and yet as will be seen differs
materially from either.
The records of the discussion in Council show
plainly His Majesty's anxious desire to free his
lands from the burden of being considered public
domain, and as such subjected to the danger of
confscation in the event of his islands being
seized by any foreign Power and also his wish
to enjoy complete control over his own property.
Moved by these considerations, and by q desire
to promote the interests of his kingdom, be pro-
ceeded with an exalted l~iberality to set apart for
the use of the Government the larger portion Of
his royal domain, r~eseryiDg to himself what he
deemed a reasonable amount of land as his own
estate. To effect that object, he signed and sealed
on the 9Th March, lS4S, two Instruments con-
tanned in the Mahele Book, the first of which
reads as follows =
Here follows the document in the Hawaiian
language.
THAT instrument we translate into English,
thus - aAH
: Know all men by this present that 1, Kane
hameha ILL.,, by the Grace Of God, King of the
Hawaiian Islands, have given this day of my own
free will, and have made over and set apart for
ever to the chiefs and people the larger part of
my royal land for the use and benefit of the Ha-
waiian Government. therefore, by this instrument
l hereby retain (or reserve) for myself and for my
heirs and successors forever my lands inscribed at
pages 178. &c., of this book, (the Mahele Book
these lands are set apart for me and for my heirs
and successors forever, as my own property ex-
clusively.'
By referring to the Con6rmatory Act of the
7th June, lS48, it must be apparent to every one
from the close similarity of the language used in
said Act with that of the instruments just recited,
that the Legislative Council simply intended by
that Act to ratify what had been already done
by the King in Privy Council, and thereby bind
the nation to its faithful observance forever:
T" 10 our opinion, while it was clearly the inten-
ton of Kamehameha Ill. to protect the lands
which he reserved to himself out of the domain
which had been acquired by his family through
the prowess and skill of his father the Conqueror,
from the danger of being treated as public do
main or Government property, it was also his in
tentlon to provide that those lands should de-
scend to his heirs and successors, the future
wearers of the Crown which the Conuueror had
won and we understand the Act Of the 7th
June, l84S. as having secured both those objects.
Under that Act the lands descend in fee, the in
heritance being limited however to the sue
cessors to the Throne, and each successive pos
SCISSOR, may regulate and dispose of the same
according to his will and pleasure in like manner
as was done by Kamehameha Ill. tL
/" In our opinion, the fifth clause of the viii of
kamehameha III. was not necessary to pass the
reserved lands to Kamehameha ~. any more
than the first clause was necessary to pass to him
the Crown. He was entitled to inherit those
lands by force of the Act of 7th June, l84S,
when he succeeded to the Crown in virtue of the
public proclamation made by his predecessor,
NTH tho annaonk of kha In-ao r. NJ III