Foreign Relations of the United States, 1894, Appendix II, Affairs in Hawaii

Mr. Thurston to Mr. Gresham.

Hawaiian Legation,
Washington, December 5, 1893.

Sir: In confirmation of the claims presented to you by myself during several recent interviews, concerning suggested action by the United States Government towards the Provisional Government of Hawaii, as outlined in your communication to the President recently published, and affirmed in the President’s message sent yesterday to Congress, I have the honor to hereby submit to you the claims of the Government which I represent in and concerning the premises.

If I correctly apprehend the propositions advanced by the Government of the United States they are:

• First. That the Hawaiian monarchy was subverted by the action of the United States representatives and forces.
• Second. That but for such action the monarchy would not have been subverted nor the Provisional Government created.
• Third. That such conclusions are based upon the report made by the Hon. James H. Blount.
• Fourth. That in view of such action by those representing the Government of the United States, it is proposed that the latter Government shall restore the status existing prior to such subversion of the monarchy.

In opposition to such proposed action I hereby, on behalf of the Government I represent, submit the following claims and reasons:

• First. The Provisional Government of Hawaii is a duly organized and fully recognized independent Government, holding diplomatic relations with nearly all the nations of the world.

  It has accredited its diplomatic representatives to the United States Government, which has received them in the manner customary in dealing with the representatives of friendly independent nations.

  The United States Government has, in turn, accredited its representatives to the Provisional Government of Hawaii, and they have in like manner been formally received by it.

  There is nothing lacking to constitute the present Government of Hawaii a full, free, and independent sovereignty, subject to all the obligations and entitled to all the rights, privileges, and courtesies accorded by the United States Government to the most favored nations with whom it is in treaty relations.

• Second. It is submitted that the Government of the United States has acquired no jurisdiction over the independent sovereign state of Hawaii. There being two distinct sovereignties, jurisdiction by the United States can only be obtained in three ways, viz: (1) by conquest; (2) by treaty; (3) by voluntary submission to the decision of the United States Government in the nature of arbitration.

  There is no claim made that the sovereignty of Hawaii is subordinate to that of the United States by reason of conquest, nor has it been surrendered by treaty.

  There is a suggestion, however, in the communication by yourself to the President, above referred to, that authority by voluntary submission in the nature of a power to arbitrate has been conferred upon the Government of the United States. I refer to that portion wherein you state that, “The Government of Hawaii surrendered its authority under a threat of war, until such time as the Government of the United States, upon the facts being presented to it, should reinstate the Constitutional Sovereign; and the Provisional Government was created to exist until terms of union with the United States of America have been negotiated and agreed upon.’”

  I submit that no such authority has been conferred, and in support of such contention present the following reasons: (1) If the parties in Hawaii contending for the control of the Government had intended to submit their differences to the arbitration of the United States, a formal statement to such differences and the points to be settled would have been drawn up and signed in the usual form of an agreement for arbitration.

  No such action has been taken. (2) An arbitration is essentially a judicial proceeding, the elemental features of which, under the principles and forms of precedure in use both in the United States and Hawaii, are, first, notice of the charges made or points at issue; second, opportunity to hear and cross-examine evidence produced by the opposing party; third, opportunity to produce evidence in support of claims made and to meet that of the opposing party; fourth, a full and fair hearing accorded to both parties in open court.

  In no particular have these particulars, fundamental to the just and equitable decision of the simplest judicial issue, been observed in this admittedly complicated question.

  The Government of Hawaii, acting under its international right, has made a formal proposition to, by treaty, change the political relation existing between the two countries.

  The authority of the Hawaiian Government to make such a proposition was not questioned, and a treaty for the accomplishment of such purpose was duly signed by the representatives of the executives of the two countries.

  Pending the final ratification of such treaty, by desire of the Government of the United States, negotiations were suspended over nine months ago, and an investigation was instituted by the Government of the United States by a special commissioner.

  During all such time the Hawaiian Government has peaceably administered its own affairs and faithfully carried out all its treaty obligations with all foreign powers.

  Up to the present time the Hawaiian Government has received no information that such investigation was for any purpose other than to determine the policy of the Government of the United States concerning such proposition of the Government of Hawaii.

  It has not been a party to such investigation, which has been ex parte and conducted in secret.

  It has been accorded no opportunity to meet the evidence produced nor to present evidence or argument in its own behalf.

  The names of the witnesses and the character of the evidence upon which it is proposed to be subverted were unknown to ft until published simultaneously with the announcement of the conclusion of the investigating commissioner.

  It has received no notice that it was on trial for its life, and has not even been informed that it was charged with having taken action for which it was responsible to the United States or whereby it had brought itself within the jurisdiction of such Government.

  The proclamation issued by the Provisional Government of Hawaii defining its objects and causes does, indeed, state as quoted in your communication above referred to, that it was created “to exist until terms of union with the United States of America have been negotiated and agreed upon.” But I submit that neither legally, logically, nor grammatically does such phrase indicate that because annexation has not yet been consummated the Provisional Government is therefore and thereby terminated.

  On the contrary, I submit that its meaning is clearly and distinctly the exact opposite of that suggested.

  The Provisional Government was formed with a fixed, definite purpose in view, viz, annexation to the United States. If the date of the consummation of such object had been known it could have been in the place of the phrase actually used. As such date was not and could not be known, an appropriate phrase was used signifying that the Government should continue to exist until the object was accomplished. A government was established not absolutely but conditionally. If the wording of the proclamation had been “to exist until the Government of the United States refuses to agree to annexation,” a refusal would then have constituted a condition the happening of which, in and of itself, would have terminated the Provisional Government.

  There was, however, but one condition named in the proclamation, the happening of which should terminate the existence of the Government thereby created, viz, “Union with the United States of America.” There is no other terminating condition. Unless and until that condition happens the Government continues in existence. If the happening of the condition is postponed for one, two, or ten years, or for an indefinite period, the Government continues to exist for a like period. The fact that annexation has not yet taken place does not negative the possibility of its happening in the future. So long as the terminating condition has not happened, but may happen, so long does the Government continue to exist, unless changed or terminated by its own act or the act of the people of Hawaii.

  I further submit that if the reasoning last above set forth is incorrect, and the failure to have yet secured annexation does logically terminate the existence of the Provisional Government, such fact” does not confer jurisdiction upon the United States to construe such instrument, but that the construction and interpretation of the wording of such proclamation is purely a matter of domestic concern to be settled by the parties in interest in Hawaii in such manner as the Government and laws of that country may provide.

• Third. While neither admitting nor questioning the correctness of the allegations of fact reported by Mr. Blount, I purposely omit discussion or criticism thereof, for the reasons, first, that the Hawaiian Government has not been a party to such investigation, and therefore can not be bound by same; and, second, if it be true that the representatives of the United States exceeded their powers, as alleged, such fact does not vest any jurisdiction in the Government of the United States to now infringe upon Hawaiian sovereignty.

  It is an axiom of law that no man may take advantage of his own wrong. The fact that the United States minister, with or without the authority of his Government, may have trespassed upon the international rights of Hawaii, does not thereby confer jurisdiction upon the Government of the United States to now again, and deliberately, trespass upon such rights.

  If the United States minister or naval officers have exceeded their authority or violated their instructions they are responsible to their Government therefor. The Hawaiian Government had no control over them. It is not responsible for what they did, and is not and can not be held answerable to the Government of the United States for their acts, nor to have forfeited any of its attributes of independent sovereignty by reason of their actions whether the same were right or wrong, authorized or unauthorized.

  In like manner, if the allegation is true, that the ex-Queen abdicated under the belief that the Provisional Government would submit the question to the United States Government, such fact does not vest in the Government of the United States any jurisdiction over the subject-matter. If the ex-Queen was warranted in such belief and an agreement was made between her and the Provisional Government, which I do not admit, the Government of the United States was no party to such agreement, and neither the making, nor the failure to carry it out, if made, confers any jurisdiction upon the Government of the United States to construe such agreement, nor in any manner to intervene between the contending parties in Hawaii, nor control or direct which of such parties shall at any given time exercise the functions of government in Hawaii.

• Fourth. If after consideration of the reasons hereinbefore advanced it is maintained by you that they do not establish the claims advanced, and that the Government of the United States has jurisdiction, notwithstanding the independent sovereignty of Hawaii, to decide upon the form, and who shall carry on the Government of Hawaii, I then submit that neither international law nor the usage of nations authorize the Government of the United States to enforce, against the will of the parties, the conclusions to which it may come.

It is not suggested in the report of Mr. Blount than any such power was agreed upon, either between the ex-Queen and the Provisional Government or otherwise.

Even if a formal submission to the United States Government had been made, and full hearing had thereon, and a decision announced, such fact would not vest in the United States any power to carry out such decision or to compel either party to abide thereby.

Unless the method of enforcement of such decision is agreed upon by the parties, the carrying out of the decision rendered is purely a matter of good faith as between the parties in interest, with no power in the arbitrating Government to compel the recognition by either party of the decision rendered.

I beg also to reaffirm in this connection my firm conviction, based upon an intimate acquaintance with all the persons and conditions involved, that the restoration of the ex-Queen, regardless of the method by which the same may be accomplished, will, unless she is maintained by the troops of some foreign power, be speedily followed by the forcible overthrow of the monarchy, involving the probable loss of life and destruction of property.

Such action will be taken, as in the past, by the intelligent, law-abiding, property-owning portion of the community, for the same reasons that the same persons took similar action last January, viz: that the long and bitter experience under the monarchy has convinced them that so long as the monarchy exists no material improvement in the methods of conducting the Government can be expected and that a further continuance of the misrule of the past years is intolerable.

It is unnecessary for me to state that such a condition of affairs will be disastrous in the extreme to every material interest in the islands, and to all trade and commerce connected therewith, the greater portion of which is owned and carried on by American citizens and capital.

Allow me to reiterate that neither this statement nor any act done by the Provisional Government or by myself is with any spirit of hostility to the people or Government of the United States. On the contrary, so far from being in any manner hostile, the Provisional Government and its supporters have demonstrated by their acts that they are not only friendly in the ordinary acceptance of the word, but that they have such faith in the Government of the United States that they have taken up arms and risked their lives and property to place themselves, almost unreservedly and unconditionally, under the jurisdiction and control of that Government, asking only in return that they may share in the freedom of its flag and the stability and equality of its Government.

All that I seek by this statement is to convey to you a plain frank statement of what the Provisional Government of Hawaii conceives to be its rights under international law in and concerning the premises, and to indicate to you, as it is my duty to do, what in my opinion the conditions are and will be if action on certain suggested lines is taken.

I have, &c.

L. A Thurston.