Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1888, Part I
Mr. Merrill to Mr. Bayard.
Honolulu , December 15, 1887. (Received December 31.)
Sir: I have the honor to inform you that on the 12th instant quite an animated discussion occurred in the legislature regarding the right of His Majesty the King to veto bills passed by the legislature and presented to him for approval unless the veto be countersigned by a member of the cabinet.
On the 9th instant His Majesty, acting under authority of article 48 of the new constitution, which confers the veto power, returned to the legislature certain bills without his signature, giving his reasons therefor, notwithstanding the advice of his ministers to approve them.
The discussion arose on the question of adopting resolutions, introduced by Noble Castle, declaring it to be the sense of the legislature that the royal assent to the bills had not been refused, according to the intent and meaning of the constitution, for the reason that the message accompanying them was an act performed without the advice and consent of the cabinet and was not countersigned by a minister.
The resolution was finally adopted and a committee of thirteen was appointed, with the cabinet, to wait upon His Majesty and inform him of the action of the legislature.
During the day, and while the matter was under discussion in the legislature, His Majesty sent a communication to the justices of the supreme court inviting their opinions as to his constitutional rights in the premises, as in article 70 of the new constitution it is provided he may do.[Page 838]
The opinions of the justices will probably be given on the 17th instant. Considerable feeling over the subject has been engendered in the community, and during the pendency of the matter before the members of the supreme court the veto is the absorbing topic of newspaper and street discussion, accompanied with the usual variety of opinions and arguments for and against the right of the King.
What may be termed the radical element of the reform party insist that it never was the intention of the framers of the constitution to grant the King the right of veto independent of the cabinet, and that this position must be maintained in any event, otherwise the new constitution and the so-called revolution of June and July last accomplished nothing.
The advocates of the independent right of veto by His Majesty insist, on the contrary, that the restraining clauses of the constitution refer to executive acts only.
The articles of the constitution bearing upon the subject are 41–18, and 78.
While there are some insinuations of a determination to maintain the views expressed in the resolutions adopted by the legislature, regardless of the decision of the justices of the supreme court, yet, in quietly conversing with prominent business men and some members of the legislature, I find the general impression is that any attempt by the extremists to force a construction of the constitution in opposition to the views of the judges would not meet with public approval.
I feel quite confident that any attempt to repeat the demonstrations which brought about the promulgation of the present constitution would not receive the popular support given the leaders in June and July last.
In order that the Department may have a complete understanding of the temper of the discussion here, I inclose extracts of the proceedings of the legislature giving the resolutions presented by Noble Castle and the remarks thereon.
By the steamer leaving here on Tuesday next, the 20th instant, I hope to be able to forward you the decision of the judges of the supreme court on the questions at issue and acquaint you with the manner in which it is received by the legislature and the people.
I have, etc.,
Extract of legislative proceedings, December 12, 1887.—Resolutions on the veto.
Noble Castle moved the following:
Whereas it appears by the records of the legislature of the 9th of December, 1887, instant, that the message of His Majesty the King accompanying the bills and forming the act whereby the royal assent was refused to the bills entitled, respectively, “An act to abolish the office of governor,” and “An act to provide for the discharge of certain duties heretofore performed by the governors,” which said bills have been duly passed by the legislature, is not countersigned by a minister; and
Whereas his majesty’s ministers have stated to the legislature that such message and the action based thereon were made without the advice and consent of the cabinet; and
Whereas it is a fundamental principle of the constitution and of the system of government based thereon that the sovereign shall act in matters of state only through responsible ministers: Therefore, be it
Resolved, That it is the sense of the legislature that the royal assent has not been refused to the bills entitled, respectively, “An act to abolish the office of governor” [Page 839] and “An act to provide for the discharge of certain duties hitherto performed by the governors,” according to the intent and meaning of the constitution, and that” said message and the action thereon based is of no effect; and be it further
Resolved, That said bills, with the message accompanying them, shall be, and are hereby, through the cabinet forthwith referred back to his majesty for such farther or final action as may be necessary; and be it further
Resolved, That a committee of thirteen members of this assembly be appointed to wait upon his majesty with the cabinet, and inform him respectfully of the action of the legislature in the premises.
The resolution was seconded by Noble Waterhouse.
Noble Baldwin moved the resolution be adopted. Seconded by Noble Dole.
Representative Nakaleka moved indefinite postponement.
Noble Castle said: The issue presented is very grave and must be decided only after careful and exhaustive discussion and examination. It calls for a construction by the legislature of the true intent and meaning of the constitution. It is to be regretted that so many important matters have been brought forward at this session, when the constitution is young, the legislature inexperienced, and the government hardly in full grasp of the reins of control under the new order of things. But, have it as we would, the issue has arisen and must be decided.
The question is placed before us and we must indicate what, in our opinion, are the limitations upon the power of the King? What are the limitations upon the legislative power? Whose is the legislative power of the kingdom? The honorable member for Molokai, Mr. Nakaleka, resents this as a thrust at the King. He says that we can not compel the King to do or not to do anything. The honorable member must be reminded that in this matter the legislature is not the inferior of the King. It stands as his equal, and may express its opinion as to the legality and constitutionality of his acts.
In this country we have had a government which, in the short space of a generation, has progressed from an irresponsible monarchy to the constitutional government of a free people. The constitution and laws of 1839 were a recognition of the existence of rights inherent in the people. The constitution of 1852 admitted still more of those rights. The constitution of 1864 was an attempt to abridge and curtail them, and, so long as the administration under that constitution was for the general good of the public, no one suffered and the abridgment of public right was not appreciable. But when the powers and abuse of popular right possible thereunder began to press upon the people, they arose and demanded reformation and recognition of public right. The constitution of July, 1887, is the answer, and by it we have obtained and intend to retain the right to make our own laws and to have a true representative and responsible government.
While our system of constitutional government is in many respects peculiar to ourselves, yet we can not avoid comparison with other countries under the reign of constitutional law. Our system resembles that of Great Britain, the mother of all freedom, rather than that of the United States of America. In the latter no cabinet, as of constitutional right, sits with and as a part of the legislature or Congress. The Executive is not represented in any respect in the legislative department. In this country, as in England, the cabinet forms a part of the legislature and is responsible to it. Here the cabinet is not elective, but our present fundamental law expressly makes the cabinet responsible to the House, and if not in accord, the King must remove them upon a vote of want of confidence. In England the cabinet is composed of elective members of the Parliament, at least as to a portion of them. No cabinet in the United States can be removed by the law-making power. Here and in the British Empire the cabinets are made and unmade by the legislature.
The veto power is given by the constitution of each of the United States to the governors, and by that of the Federal Union to the President. That power is frequently exercised. It can be overcome by a two-thirds vote of the legislature, and if such vote can not be obtained and the veto power is exercised contrary to public policy, the people simply wait for a short term, until the expiration of the term of office of the President or governor when another man is elected whose views are in accord with such policy. But no such relief can be had in a” constitutional monarchy; the sovereign reigns till death ensues, and in some senses this might be called forever.
In England the veto power may be said to exist as one of the prerogatives of the crown, but it has not been exercised since 1707, during the reign of Queen Anne, and, in fact, the power is obsolete. No sovereign of England would dare to nullify the act of the Parliament. It will not and can not be done so long as the principle of responsibility exists. This principle is what our constitution establishes. It is for this that the country arose as one man in June last, and compelled the recognition of these principles in the grant of the new constitution.
Without a review of the growth of this principle of responsible government, we now come to the question of what is the proper construction of our constitution. [Page 840] Does it not appear to conflict in any of its clauses? The rule of construction must he so exercised as to give force to all of its points if possible. If this requires the limitation of any part, such limitation will be placed upon such part in order that it may have effect. If parts are totally repuguant, the clauses last in time and place will control. These laws are recognized in England and the United States, and are admirably laid down in Cooley’s Constitutional Limitations, p. 71, etc. With these rules in view, we find that the act of withholding of assent to a bill by the King can be performed by and with the advice and consent of the cabinet, and that without such advice and consent such act can not be exercised without violence to the letter and spirit of the constitution. If the King can by his acts, without the advice of his cabinet, which is responsible, or contrary to such advice, render null the act of the legislature, then we return to the condition from which we escaped in July last, and all of our trouble returns to us again. If our constitution means anything; if responsible government is not a delusion; if we gained anything by our new system, it is that the King acts by and with the advice and consent of the cabinet, and for these reasons I introduced the resolution and advocate its passage.
Representative Paehaole saw nothing in the constitution requiring the King’s veto to be countersigned by one of his ministers. He was of opinion that the King had complied with the constitution, and that the ministers were to blame.
Noble Widemann said the introducer of the resolution had evidently convinced himself that his views were correct; but he had failed to convince him, the speaker. The veto was a judicial act. Article 41 was intended for executive and not for judicial acts. This resolution is an uncertain solution of the question. When they get the supreme court decision we shall have a full solution of the question.
Representative Paehaole opposed the resolution.
Noble Townsend said: All political power emanates from the people. This is the Anglo-Saxon idea. It is the idea which first developed into political liberty in England. It is the idea which animated the revolutionary fathers in America. It is the idea which led to the downfall of the despotism of the Bourbons of France. It is the idea which has been shaking all Europe periodically for generations. It is the idea which aroused unbounded enthusiasm in the greatest people’s meeting ever held in these islands, on the 30th day of last June. This idea is prevailing and has been prevailing over all opposing ideas for ages. Sometimes it prevails quietly, and sometimes amid commotion, as when an unwilling King signed the first great Charter of English liberty at Runnymede. In form King John granted this measure of liberty to the people. In reality he signed the charter as it was presented to him, and that to save his throne, if not to save his life. In early days the opposite feudal idea, that all political power emanates from the throne, was acknowledged as the foundation of the government of these islands. That theory of utter irresponsibility to the people developed the state of affairs which prevailed here just before the memorable mass-meeting. Then the people arose in their might and put down that state of affairs. They not only demanded that incompetent and bad officials be dismissed, but they struck deep at the root of the evil. They demanded that the whole system be changed from its very foundation. They demanded of the King—for their request was nothing less than a demand—“(1) That he will not in the future interfere either directly or indirectly with the election of representatives; (2) that he will not interfere with or attempt to unduly influence legislation or legislators; (3) that he will not interfere with the constitutional administration of his cabinet.” On the 1st day of July His Majesty answered the people, granting all that they asked. He consented also, specifically, to a new constitution. And why did the people want a new constitution? They wanted the principles which they had demanded so earnestly incorporated into the organic law of the land. We all remember what enthusiasm was displayed on that occasion. Even the most extravagant speeches were applauded, as speeches were never before applauded in this land.
The constitution was promised and the excitement subsided somewhat. But we remember with what deep interest all awaited the appearance of that document. It is an open secret that the work of framing the constitution was given to some of our wisest and shrewdest men, to embody in it the principles which the people had contended for. And they did it. And it was eagerly that the people looked for the result of their work. I remember when the constitution was first printed. I seized a copy of it and spread it on the table and read it through, eagerly looking to see if we had gained our point. I read on and on, seeing little changes—some good, some doubtful. As I approached the end my heart sank within me. At last I came to article 78. It was a shock to me. We had it after all. I felt like the wag who read it through with complaints and maledictions till he came to article 78, when he started up with the exclamation, “I didn’t know it was loaded!” It was loaded, Mr. President, and it is loaded yet.
I looked back over the sections and read:
“The King convenes the legislature, etc.” “The King has the power to make treaties.” “The King coins money, etc.” But I found article 30 different in wording [Page 841] from all others. It reads: “It is the King’s prerogative to receive and acknowledge public ministers; to inform the legislature by royal message, from time to time, of the state of the Kingdom; and to recommend to its consideration such measures as he shall judge necessary and expedient.” Here are three acts which are said to be the King’s prerogative. Now, prerogative simply means irresponsible power. These, then, are the powers for the exercise of which no one can be held responsible. These are the exceptions referred to in article 78. And it is the plain inference from this statement that other powers spoken of are not prerogative.
Article 44 says, “The legislative power of the Kingdom is vested in the King and the legislature, which shall consist of the nobles and representatives sitting together.” How comes it that four gentlemen (the ministers) sit opposite me and join in the actions of this house? Are they nobles? Are they representatives? No, they are the cabinet. They have a right to sit in this house under article 42 Does article 42, then, contradict article 44, or does it explain it? It certainly does one or the other. I hold that it simply explains. The gentlemen before me sit as representatives of His Majesty. It is through them that he exercises his legislative power.
Again, article 42 says “The cabinet hold seats ex officio, in the legislature, with the right to vote, except on a question of want of confidence in them.” There is absolutely only one class of questions, then, on which they may not vote, and that embraces questions of want of confidence in them and nothing more. Yet article 48 plainly implies that they may not vote on the passage of a bill without the royal signature. The natural and necessary inference from this is that the cabinet is responsible for the exercise of the so-called veto power. If they exercise that power and the legislature votes them down on it, two to one, then it is certainly time for them to step down and out. Article 78 explains how they can be held responsible; for it is utterly unreasonable to hold any set of men responsible for acts not their own. “Wherever by the constitution any act is to be done or performed by the King or the sovereign it shall unless otherwise expressed, mean that such act shall be done and performed by the sovereign by and with the advice and consent of his cabinet.” This is the key to the whole constitutional question, and I shall not discuss it further.
Mr. President, nearly all of us are representatives of those who took part in and carried forward the movement of the 30th of June and the early days of July. Those who spoke so fervently and those who applauded so heartily at “the great mass-meeting,” and those who sustained the movement in other districts, are our constituents. To-day they demand of us that we maintain the principles which they then established. We must not prove false to our great trust. Only one thing more. Where political power is exercised the people will hold the person who exercises it responsible, no matter what a written constitution or written law may say about it. We had an illustration of that on the 30th of June. A man who by the constitution could not be held accountable for his actions, was then and there called to account at the bar of public opinion. And whoever wields political power in this land will be held responsible for it, either at the bar of this house, or in the courts of justice, or at the bar of public opinion. We can not have another 30th of June. We can not have another 1st of July. The occurrences of those days will never be repeated. Any attempt in that line will bring about results disastrous in the extreme. We must guard against whatever looks toward such a thing. For the sake of our constituents, and for the sake of our King, we ought to take a firm stand now and avert future disaster and maintain the peace of the land.
Noble Smith said: This is a question of the right of the King to act in defiance of his cabinet and of the majority of the legislature; of acting on a vital matter. He has attempted to exercise the “veto” power against the advice of his ministers. This is clearly contrary to the constitution. The veto power of the President of the United States has been referred to. Mr. President, the President of the United States has no such irresponsible power as the King seeks to exercise. The President of the United States is elected by the people for a definite period of four years, and if he has not satisfied the people he is not permitted to occupy the Executive seat again.
While he is the President he is the Executive. But how is his power held responsible to the people? Not only by the power of Congress to pass the law over a veto by a two-thirds vote, but he is liable to impeachment at any time.
Our King is not liable to impeachment. His power “is inviolable and sacred.” He can not be held responsible in a court. The President of that Great Republic of sixty millions is liable as any citizen.
We have placed our King above responsibility, but for the protection of the people we have given him authority only in conjunction with ministers who are responsible, ministers whom the people can remove at any time.
It is the highest loyalty to seek to save the King from the result of the bad advice he has received.
It is loyalty to the throne, loyalty to the people, and loyalty to ourselves.
Those who desire to perpetuate the autonomy and independence of this Kingdom must demand that responsible government be maintained. Responsible government means accountability to the people.[Page 842]
The King is accountable only through the ministers. His person “is inviolable and sacred.” His ministers “are responsible.”
If he has the power to veto a bill in defiance of his ministers, he has the power to do every other act in defiance of them, and article 78 of the constitution is meaningless.
He can suspend the writ of ha beas corpus, make treaties, coin money, etc., and becomes the sole executive power notwithstanding article 31 of the constitution, which states, “To the King and the cabinet belongs the executive power.”
It is the old conflict of the throne reaching after prerogatives in opposition to Parliament. It is the hopeless contest which arbitrary and despotic rulers have waged with the people.
It is hopeless, for the people will prevail in the end.
The King has been influenced by unwise and irresponsible advisers.
It is the height of folly and madness. If this course is persisted in, the result is as certain as the triumph of right and freedom.
The principles of responsible government will be maintained, and every obstacle will be removed.
Of all persons, the Hawaiians in this house should pause and ponder, and with every power seek to influence the King to reconsider his action and recall his ill-advised step. Their hope, the national existence of the Hawaiian people, depends on the preservation of responsible government.
The merits of the bills which were returned to the house are lost from view in the magnitude of the issue involved in the course adopted by the King.
There was no uncertainty as to the meaning of the demand of the people on the 30th of June, “that he will not interfere with the constitutional administration of his cabinet.”
There was no uncertainty in the King’s response:“We reply that the specific pledges required of us are each severally acceded to.”
There is no uncertainty as to the meaning of article 78 of the constitution, requiring the “advice and consent of the cabinet” to every act to be “done or performed by the King,” and there is no uncertainty as to the final result of the issue now raised by the King and his unwise advisers.
The people had power to make the new constitution, but if they have not the power to maintain it in its integrity and purity, the independence of these islands is doomed— is doomed to hopeless oblivion.
Not by way of threat, but to call attention to one of the peaceable remedies which the people, through their representatives, may be compelled to assert, I say that if the reasonable request of this resolution is not heeded, this house will have to consider the course to pursue in regard to the appropriation bill at the regular session. The rights of the people must be preserved.
Minister Thurston said that, as a minister of the Crown, it would be proper for him to be duly conservative in what remarks he might make. This was a question that had been contested in every age and in every land, and in every instance the cause of the people triumphed.
In 1820 Kamehameha ruled as an absolute monarch, and had the power of life and death. There are no people here now who believe that prerogative was right. And yet in that time the great mass of the people thought it was all right; that the King had the “divine right” to do as he pleased.
The minister reviewed the history of prerogative down to the constitution of 1852, and the kings who ruled under it until the beginning of the present reign. People did not feel the weight of prerogative until then. Even since the accession of the present monarch the prerogative has been gaining ground. Session after session of the legislature produced new laws enlarging the King’s powers, until at length the majority of the legislature became a set of puppets.
Coming to the present constitution, his excellency stated that the golden thread running through the whole document was “responsible government.” His idea of responsible government was that no one could be invested with any power whatever unless he was responsible for his acts to the people. It is absurd for us to assert that we have a responsible government if our legislative acts are to be abrogated by a personal veto.
The honorable member referred to the tremendous opposition in the British Islands to the coercion act, but there was no veto heard of in connection with it. The New England colonies resisted the King’s power on the principle of “No representation, no taxation,” although the whole amount of their tax was only £80 a year. Our rallying cry must be, “No responsibility, no power,” and we must insist upon that idea being carried out.
The principles contended for by the American revolutionists are the same principles that we are called upon to maintain to-day. The question before us is as important to us as the issue of the Revolution of 1776 was to those engaged in it.
The gauntlet of prerogative was thrown down to us about the first of the year, when [Page 843] we were asked, “What are you going to do about it?” We took it up and showed what we meant to do about it. Now the gauntlet is thrown down again, and it remains to be seen what we can do about it.
Noble Widemann said that there is no use in our discussing what we would like to have in the constitution. The matter ought to be referred to the supreme court; that was the proper place to have it settled. He moved the question “Whether the King has the right of veto without the advice of his ministers” be referred to the supreme court.
Representative Kauhi could see nothing in the constitution or laws requiring the appointment of a committee as proposed in this resolution.
Minister Green said that for the past six years there had been constant trouble caused by the King acting contrary to his ministers and to the legislature. Legislatures had indorsed ministers and the King had next day turned them out. He is prevented from doing this to-day, but he is vetoing a bill contrary to the cabinet and the legislature together. It might be said that he ought not to speak in this way, being a minister, but there were times when one ought not to keep back what ought to be said. He wished to be friendly with the King, as he had always been. But there was no friendship in not telling him the whole truth and placing before him the facts as they stand. If there are friends of the King in the house, he would say to them that there are difficulties ahead of his majesty which he does not foresee if he takes a position opposed to the legislature and rejects the advice of his ministers. His taking a position of antagonism to the legislature and the ministers is fraught with the greatest danger to the whole country. Whether the step proposed in this resolution is the best one to take he was not prepared to say, but he hoped the legislature would take some means of effectively advising his majesty to take a course different from that he had taken.
Representative Kinney said that the house had committed itself and the ministers had committed themselves. We are all in the stream. Let us carry this thing through. About submitting this question to the supreme court; whatever the supreme court may decide this house is equal to them and must give its voice on the question. If we draw back from this resolution, we indicate that his majesty is equal to two-thirds of the house and two-thirds of the country. By this resolution we give advice as to how his Kingdom can go on. The committee of thirteen can go to his majesty and present this resolution as the will of this house, from which the house will not go back. How do honorable members who oppose the appointment of a committee propose to send this resolution; in a wheelbarrow? He would not vote for the resolution if it meant for the committee to go over to the palace and wrangle. It is a weak, pitiable, and miserable move for the house to attempt to hide itself behind the supreme court. The judges of the supreme court can not help us. He did not want to indulge in personalities about the King, nor he did not believe in currying favor with the King. He would acknowledge all the rights of the King, but he would expect the King to treat us like men. If this thing goes on there will be a continuous personal friction between the King and the people. If his majesty means by this act that he has the right of veto as in former years, it means that the will or the King will be the will of any rascal that can sneak in at the back door and gain the King’s ear. The King has not heard much of a rumble yet, but if this and other bills are vetoed and the vetoes can not be overcome by a two-thirds vote, there will be a noise that will be a torment to King and people. We mean that the King shall stay on his throne and we will settle our own affairs.
Noble Young said it was all but impossible to get twelve men to agree on a small matter, and it is no wonder if all the members of this house can not agree on a great matter. Ho thanked God he had not so much legal education as some lawyers. Any one can see what this constitution means, but no one can see it who does not want to. He wished to say to Hawaiians in the house that it was his desire to maintain them in their rights. He wanted to make it impossible for any miserable sneaks to be continually crawling about the King, to overturn the throne and the King with it. Until within the past few days his majesty understood this article of the constitution precisely as we did. If God would take care of the King’s false friends he might take care of his enemies himself. About abiding by the decisions of the supreme court; if this were given to two lawyers, one would say it was white, the other that it was black. But this pamphlet, the constitution, is plain reading. The object of the revolution was to prevent King Kalakaua from running this nation to destruction without putting some break upon him. The intention of the reform was that the King reign over us by the advice of his ministers. It was to put him in such a position as to prevent him from perpetrating acts such as those of late years, which would have involved the destruction of the county and himself. His majesty has the respect of the community only so long as he will abide by the constitution.
Dr. Wight said: If he was not strongly opposed to the previous question he should have moved it heretofore. The longer they talked the hotter they became. He deprecated the intemperate language that had been used. Civility was a cheap [Page 844] commodity, and it was with profound regret he heard the language Used by the member for Hamakua.
Representative Kinney rose to a question of privilege, saying he was unaware that his language was intemperate.
Noble Wight considered the honorable member’s language partook of a threat. Civility was a cheap commodity; therefore, the question should be put as soon as possible. He did not consider the King was singular in the construction he put upon the constitution. He looked upon the matter in the same light as his majesty. It would be extremely hard to come down upon the King for standing up for his privileges. He was quite in accord with the mover of the resolutions as to sending a committee to represent, if it was so deemed, that the King had been maladvised.
The motion to indefinitely postpone the resolution was put and lost.
The motion to refer to the supreme court was lost.
The resolution was adopted by the following vote:
Ayes—Green G. Brown, Thurston, Ashford, Robinson, Young, Jaeger, Castle, Smith, Waterhonse, Foster, Wight, Notly, Wall, Townsend, Baldwin, Bailey, G. N. Wilcox, Dole, Hustace, Dowsett, jr.; Kalaukoa, Kinney, Helekunihi, Kawainui, A. S. Wilcox, Rice, and Gay—28.
Noes—Richardson, Campbell, Widemann, Naone, Kauhi, C. Brown, F. Brown, Kamai, Kamauoha, Nakaleka, and Paehaole—11.
The following were appointed committee of thirteen: Nobles Castle, Baldwin, Wilcox, Wight, Robinson, and Representatives Kinney, Kamauoha, Rice, F. Brown, Naone, Kamai, Gay, Dowsett, jr.