The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-04-07
THE LEGAL ASPECT OF THE CROWN
LANDS QUESTION.

In last Saturdays issue the
ADVERTISER gave brief sketch of
the history of the Crown lands
from the time of the great Mahele
to the present day. 1t was there
shown that the estate originated in
q reservation in a grant made to
the government by Kamehameha
ILL.,, which was confirmed by legis-
lative Act in the same year, 1848 /;
that in 1865 the Legislature altered
the royal estate in the lands, and
that since that time it has exerted
a continuous control over them.
What is the legal significance of
these facts =? To whom do the
Crown lands belong? Who has the
final right to dispose of them ?
Three different answers to these
questions may be made. 1t may
be held:
1. That the Crown lands are the
private property of the Sovereign,
which she has right to hold as
all other private property is held,
free from legislative control or in
reference.
2. That the Sovereign has a
beneficial interest in the lands sub
ject to the provisions of the Act of
1866. The Legislature has a regu-
latiye power in the matter, but not
the right to assume possession of
the lands. The Legislature is
limited by the original intention of
the grant of '48 and the Act of
1866.
3. That the lands are the pro-
perty of the people, and the Legis-
lature has full control.
More than one modification of
each of the foregoing views is pos
sible, but for the purposes of this
article the classification here given
will be sufficient. We will con-
slider the points in their order.
1. The idea that the sovereign is
the private owner, with the full
right of disposition and control,
may be dismissed very briefly. 1t
seems hardly possible that such a
view can be seriously maintained
nowadays. 1t might have been a
sound contention in 1848, but it is
an anachronism in 1892. There can
be no doubt certainly that Kane
hameha III. and Kamehameha ".
dealt with these lands as their pri-
vate property. Moreover, the Ian
guage of the original reservation
purported to reserve a fee, and is
such as would be construed, in any
deed, to pass fee simple title /; but
the language of the Confirmation
Act of 184S was susceptible of a
different construction, and the Su-
preme Court, constituting that Act
in 1864, put upon it a different con-
struction. The Legislature in 1865
assumed control of the lands, Gre
ated an entirely new estate in them,
and has exercised a control over
them ever since. To hold that
the sovereign is an absolute
owner would be to reverse
the whole course of legis-
lative enactment and judicial
decision-for the Courts have re-
peatedly recognized the present
status--for generation past. Most
lawyers will admit that it would be
bad law as well as bad policy to
hold that anything of the'kind can
DE done or ought TO be done.
2. The second view is one which
would seem more plausible to the
average man, and it is perhaps the
current opinion. The lands belong
to the Sovereign, subject to legisla-
tive regulation. The extent of this
regulation is fixed by the object of
the estate, which is to maintain
the dignity of the Crown" This
was the original intention of Kane
hameha Ill, and it is the idea en-
bodied in the statute of IS. The