The Hawaiian gazette., 1889-01-22

presented in time'-is not now oper
to review, it not being excepted to 10y
either party. We proceed, therefore
to the question whether the infancy
of the defendants ancestor excepted
him from the effect of the statute
and prevents the Hawaiian Govern
ment from now recovering the lane
of those who claim the right Of pos
session to the land through him. But
in this discussion it will become nee
essary to review the nature of the
claims for landed property, or rights
in land which existed prior to the
Land Commission, and also the ma
ture of the statutes establishing the
powers and jurisdiction of the Com
mission, in order to properly decide
the remaining question.
There is Il time in the history OF
every original nation, not formed by
colonization when, as it emerges from
barbarism into civilization, titles to
land may be said to have q beginning
by positive institution of the people
of such nation. Previous to the adj
vent of Christianity to this country,
in the early part Of this century, Ka-
mehameha l., as King, by right of
| conquest, was the lord paramount
and owner of all the land of this King
dom. This right continued in his
successors until the reign of Kameha-
meha III. Under this King govern
ment, under constitution and laws
had its birth, superceding a govern
ment of the arbitrary will of the
| King.
Claims of one character and another
| to the possession of land had grown
up, but there was no certainty about
them, and all was confusion, and,
finally, after Years of discussion had
between the King, the chiefs and
their foreign councillors, the plan of
a Board of Commissioners to Quiet
Land Titles was evolved, and finally
established by law, for the purpose of
settling these claims and affOrding an
opportunity to all persons to procure
valid paper titles emanating from the
Government representing the sover-
eighty, the source of all title to land
in this Kingdom, to the land which
they claimed. As Il part of this
scheme, Kamehameha Ill, with I'M
eXampled magnanimity, relinquished
his claim of ownership as sovereign,
to over two-thirds of the en- tire terri
tory of the Kingdom, in order that
the same might be awarded to the
chiefs and common people by the
Land Commission. The Commission
was authorized to consider possession
of land acquired by oral gift of Kane
hameha l., or one of his high chiefs,
as sufficient evidence of title to author
iZe an award therefor to the claim
ant. This we must consider as the
foundation of all titles to land in this
Kingdom, except such us come from
the King, to any part of his reserved
lands, and excepting also the lists of
government and fort lands reserved.
The land in dispute in this case is not
one of those specifically reserved by
the King, Kamehameha Ill, to him
self and his SUCCESSORS, and not being
in the lists of lands specially set apart
as government or fort lands, must be
one of those over which the Land
Commission had jurisdiction to award
to the claimant.
The Land Commissioners were by
Section l of the Act creating it Up. 100
Stat. 4G) 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 TO
the passage OF this Act, doth Deem |
Der, 1870.
Section of this Act prescribed that !
I" all claims to land as against the Ha- |
waiian Government which are not |
presented to said Board within the |
time, at the place, and in the manner
prescribed in the notice required to be |
given, in the fifth Section of this Ar
ticle, shall be deemed to be invalid |
and shall be forever barred in law, |
unless the claimant be absent from
the Kingdom and have no represent
alive therein
1t is clear from reading of the
" Principles adopted by the Board
of Commissioners to Quiet Land
Titles. in their adjudication of claims
presented to them, that the "whole
power of the King to confer and con-
vey lands to which private equitable
claim now attaches reposed in the
Commission Up. So which, as fully
explained thereafter, means the
Kings private or feudatory right as
an individual participant in the own
ership."
But it is argued by the counsel for
that "this land is not
claimed of the Government, but it is
claimed under grant from Kameha-
neha l., to KameiamOku, father of
Ioapili, and from the latter it passed
o Lot Kamehameha.u That the
Z Government in this sense means {
he King, as representing the Gov
is clear from the text of the '
Principles" p. 81, that the King
eally owned the allodium in all the ]
and of the Kingdom, and the person t
n whose hands he placed the land, {
folding it in trust" Also these prin- !
iples declare that the Act of 1889 c
Declaration of Right, p. 10) "recog- f
lizes but three classes of persons hav-
ng rights in the land, the King or l
government, the landlords and the 5
enants.n And on p. So, it is further '
ct forth, "that there were but three 1
lasses of persons having vested rights 2
n the lands, (1st, the Government, t
2d), the landlord, sd, the tenant"
The whole context of these F" PFin- t
iples" shows that the land tenures 9
f this Kingdom were to be settled en- v
he basis that the King-meaning the |;
tate or Government-had one-third p
any given land held by landlord t
generally a chief and if it had ten n
nts upon it (if all parts of the land &
ere equally valuabIe) the landlord il
-ould take one-third and the tenants s
lie remaining third. An allOdial title V