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

No. 36.
Statement of Curtis J. Lyons.

hawaiian lands.

The entire area of the Hawaiian Islands was anciently divided up into ahupuäas or small districts, each of which had its individual distinctive name. These divisions were either valleys, or strips of land between gulches, or strips with artificial boundaries, which were well conserved.

The feudal system under which these were held is described in Prof. Alexander’s Brief History of Land Titles, in President Dole’s Historical Paper on the Evolution of Land Titles, and in the accompanying series of papers by the writer of this, published in 1875 on Land Matters in Hawaii.

In brief, the actual history of the transition from the feudal system to the fee simple system which took place in the period from 1846 to 1850 may be stated as follows: It being premised that while the theory of the division of lands differed more or less from the actual practice, the ends attained were virtually the same.

The chiefs, under Kamehameha III, were holding lands in fief, varying in the number of those held by any individual chief from forty or more to one, according to rank or past service of the holder. The common people were tenants of these chiefs, or else of the King when living on his private lands.

Each chief made a division in writing with Kamehameha III as sovereign, in which the chief relinquished all right in about one-half of the lands held by himself and received from the sovereign a similar relinquishment in toto of the said sovereign’s claim on the remaining half. This transaction was entered on the opposite pages of the book called the mahèlè book (mahèlè meaning division), one page bearing the deed from the King to the chief of the half of the lands by name enumerated, and the opposite page the relinquishment, by the same chief, of all claim on the other half.

The next step was the assignment by the King of much the larger portion of the half which remained in his hands to the Government or public domain. The third step was for the chiefs to also give up a small portion of their half to the same public domain.

Thus the property known as the Government lands became established, land which has ever since been more or less in the market, and of which the choicest portions were by especial effort placed by sale at nominal price in the hands of native Hawaiians.

The next step was for the chiefs to have their individual titles confirmed by the land commission. It was a subsequent matter to obtain formal royal patents.

The lands reserved by Kamehameha III, as above mentioned, with the choice lands which had been previously regarded as his own, were united in theory, and treated by himself and by Kamehameha IV as private lands. Kamehameha V, and the Legislature cooperating with him, made them inalienable, and created the board of crown commissioners to take charge of them. Thus they became national property, the income of which, however, belonged to the occupant of the throne, and has never been accounted for to the Legislative Assembly. These are now known as the crown lands.

As an undercurrent to all these transactions, the small feudal holdings of the common people who had been tenants of the King on his private lands, and of the chiefs on their lands, and of the Government on its lands were made fee simple titles by what is termed the Kuleana system under the authority of the same land commission that confirmed the titles of the chiefs. The word Kuleana means primarily, “an interest in,” and now is the name of a small holding awarded as above. The word Evant is used for all patents based on sales of Government land.

The above is a brief résumé of the essential points in reference to Hawaiian land matters as treated at length in the papers alluded to above. It is hoped that this succinct statement will aid in a study of the subject.

Curtis J. Lyons.

Honolulu , April 12, 1893 .

land matters in hawaii.

By C. J. Lyons.

[Published in the Islander, Honolulu, 1875.]

No. 1.

The change from barbarism to civilization that has taken place on these islands has in no respects had more material importance than as regards land matters. A more generally diffused understanding of some subjects connected with these matters may tend to benefit the community, especially as it may enable some to comprehend and grapple with certain difficulties that are universally felt to exist, and which however seem to be beyond the combined skill and executive ability of any one individual to remove.

The particular kind of civilization that took root on Hawaii was not of the kind that destroyed all that preceded it. It might have crushed out all ancient vested rights, ignored ancient subdivisions of land, and created a carte blanche upon which to begin de novo the marking out and mapping off of real estate; possibly endeavoring to introduce the monotonous rectangles of a United States public survey among the valleys and ridges of this diversified country.

Such a civilization would have treated the Hawaiian language as too paltry to put into print. Yet one is sometimes tempted to wish that not quite so much deference had been paid to the conservative side of the question. More of this hereafter.

The ancient divisions of land will therefore be our first subject to attend to. The islands were, if the phrase may be allowed, tremendously peopled in many portions thereof. I can think of no word to express the swarming state of population that must have existed in localities. Even had Capt. Cooke made no estimate, the evidences of such population are unmistakable. In general principles there must have been an inevitable diminution of the people with the advent of civilization, from the simple fact that the resources of the country would not support those same people so soon as their wants were increased. They were already industrious; what more could they raise from the soil, or furnish any way, save as they pandered to vice, in return for the accouterments of a new civilization. These are pertinent reasonings; certainly so to those who moralize on the diminution of races, though to follow them out would be a digression from our present subject.

Consequences of a long occupancy of this soil by a dense population, minute subdivision of land, and nomenclature thereof. Every piece of land had its name, as individual and characteristic as that of its cultivation.

The unit of land, so to speak, seems to have been the ahupuäa. Its name is derived from the ahu or altar (literally pile, kuahu being the specific term for altar), which was erected at the point where the boundary of the land was intersected by the main road, alaloa, which circumferented each of the islands. Upon this altar at the annual progress of the alma makahiki (year god) was deposited the tax paid by the land whose boundary it marked, and also an image of a hog (puaa) carved out of kukui wood and stained with red ochre. How long this was left on the altar I do not know, but from this came the name (ahupuäa) of the pile of stones, which title was also given to the division of land marked thereby. Many a time have I set up compass on ancient landmarks of this sort, especially on Hawaii. One near Honolulu may still be seen on the north external slope of the crater of Salt Lake. This, besides marking the boundary of the Halawa and Moanalua, marked also the limits of the Kona and Ewa districts. Near by I picked up an ancient ulu maika, the rolling stone of the old bowling game of maika. The more common name of the altar on the island of Oahu was kaananiau.

The ahupuäa ran from the sea to the mountain, theoretically. That is to say, the central idea of the Hawaiian division of land was emphatically central, or rather radial. Hawaiian life vibrated from uka, mountain, whence came wood, kapa for clothing, olona for fishline, ti-leaf for wrapping paper, ie for rattan lashing, wild birds for food, to the kai, sea, whence came ia, fish, and all connected therewith. Mauka and makai are therefore fundamental ideas to the native of an island. Land, as we shall see in a subsequent article, was divided accordingly.

No. 2.

In a previous article we have seen that the old Hawaiian system of dividing lands was preserved under the new system of titles; that in populous portions the subdivision was very minute, and that the main idea of the ahupuäa, or primary division, was to run a strip from the shore to the summit of the mountain, in order to give an equable share of all the different products of the soil and sea.

The ahupuäa, however, was by no means any measure of area, as it varied in size from 100 to 100,000 acres, and on the almost worthless wastes of interior Hawaii attained to an even greater extent than this. Taking the above-mentioned island first in order, the common ahupuäa is found to be a strip say of 1,000 feet average width, and running from the seashore, not by any means to the top of the mountain, but to the zone of timber land that generally exists between the 1,700 feet and 5,000 feet line of elevation. The ordinary ahupuäa extends from half a mile to a mile into this belt. Then there are the larger ahupnäas, which are wider in the open country than the others, and on entering the woods expand laterally so as to cut off all the smaller ones, and extend toward the mountain till they emerge into the open interior country; not however to converge to a point at the tops of the respective mountains. Only a rare few reach those elevations, sweeping past the upper ends of all the others, and by virtue of some privilege in bird-catching, or some analogous right, taking the whole mountain to themselves.

Thus Mauna Loa is shared by three great lands, Kapapala and Kahuku from Kau, and Humuula from Hilo. Possibly Keauhou from Kona may yet be proved to have had a fourth share. The whole main body of Mauna Kea belongs to one land from Hamakua, viz: Kaohe, to whose owners belonged the sole privilege of capturing the ua’a, a mountain-inhabiting but sea-fishing bird. High up on its eastern flank, however, stretched the already mentioned land of Humuula, whose upper limits coincide with those of the mamane, a valuable mountain acacia, and which, starting from the shore near Laupahoehoe, extends across the upper ends of all other Hilo lands to the crater of Mokuaweoweo.

These same lands, generally, had the more extended sea privileges. While the smaller ahupnaas had to content themselves with the immediate shore fishery, extending out not further than a man could touch bottom with his toes, the larger ones swept around outside of these, taking to themselves the main fisheries much in the same way as that in which the forests appropriated. Concerning the latter, it should here be remarked that it was by virtue of some valuable product of said forests that the extension of territory took place. For instance, out of a dozen lands only one possessed the right to kalai waa, hew out canoes from the koa forest. Another land embraced the wauke and olona grounds, the former for kapa, the latter for fish line.

On East Maui, the division, in its general principles, was much the same as on Hawaii, save that the radial system was better adhered to. In fact, there is pointed out to this day, on the short spur projecting into the east side of Haleakala crater, a rock called the “Pohaku oki aina,” land-dividing rock, to which the larger lands came as a center. How many lands actually came up to this is not yet known.

On West Maui the valleys were a very marked and natural mode of division. The question suggests itself as to how the isthmus would be appropriated. Some powerful chiefs of Wailuku and Waikapu seem not only to have taken the isthmus, but to have extended their domain well up the slope at the foot of Haleakala. So that there is the rare case of a long range of lands in Kula, East Maui, without any sea coast.

On Molokai and Lanai, there are exceptional cases of lands extending directly across, from sea to sea.

On Oahu the ahupuaa seems to have been oftentimes quite extended. Waikiki, for instance, stretches from the west side of Makiki Valley away to the east side of Wailupe, or nearly to the east point of the island. Honouliuli covers some forty thousand acres on the east slope of the Waianae Mountains. Generally speaking, however, the valley idea predominates. Thus Nuuanu (with its branch Pauoa), Kalihi, Moanalua, Halawa, etc., are each the limits of single lands. So Waimanalo, Kailua, Kaneohe, Heeia, etc., are ahupuaas. The long, narrow strip so common on Hawaii is less frequent on this island, excepting in Ewa district. Singularly enough the ahupuaa of Waianae mounts the summit of the Kaala range and descends into the table-lands between Ewa and Waialua, and sweeps on up to the summit of the Koolau Mountains. One would suppose that naturally that tableland would be divided between Ewa and Waialua.

On Kauai, the writer is not familiar with the general divisions. Probably the interior of the island belongs to a few large lands, while narrow and rather short strips are quite common along the shore, interspersed with large or first-class ahupuaas.

No. 3.

The next subject that claims attention is that of the subdivision of the ahupuaa.

The subdivision of the Ahupuaa were called ili. Some of the smallest ahupuaas were not subdivided at all, or at least seem not to have been, while the larger ones sometimes contained as many as thirty or forty ilis, each, of course, named with its own individual title and carefully marked out as to boundary. The word is the same as that used to designate surface, and, in latter times, area.

There were two features of the ili, referred to by the terms lele and ku, which are worthy of notice. The former is its desultory character, like unto that of the states of Germany. That is to say, the ili often consisted of several distinct sections of land—one, for instance, on the seashore, another on dry, open land, or kula, another in the regularly terraced and watered kalo patch or aina loi district, and another still in the forest, thus again carrying out the equable division system which we have seen in the ahupuaa.

These separate pieces were called, lele, i. e., “jumps,” and were most common on Oahu. Indeed I know of none on the is land of Hawaii. Some remarkable examples occur near this town. Punahou had anciently a lot on the beach near the Kakaako Salt Works; then the large lot with the spring and kalo patches where is now the school, and again a forest patch on the steep sides of Manoa Valley. Kewalo meanwhile had its seacoast adjoining Waikiki, its continuous kula on the plain, and one-half of Punchbowl Hill and its kalo land in Pauoa Valley. Kaakaukukui held Fisherman’s Point and the present harbor of Honolulu; then kalo land near the present Kukui street, and also a large tract of forest at the head of Pouoa Valley. The kalo lands of Wailupe are in Pauoa Valley. In Kalihi and also in Ewa are ilis with from eight to ten different leles, a most prolific kind of land, and now furnishing a truly desultory job for a surveyor to map out.

These different pieces were called variously, either by their own individual name, or by that of the whole ili, thus puzzling one sadly when attempting to obtain information with respect to them.

The second feature is referred to in the word ku, short for ili kupono. There were two kinds of ili; the ili of the ahupuaa, and the ili kupono. The ili of the ahupuaa was a subdivision for the convenience of the chief holding the ahupuaa; alii ai ahupuaa.

The konohikis of these divisions were only the agents of the said chief, all the revenues of the land included going to him, and the said land, in Hawaiian parlance, “belonging to the ahupuaa.”

The ili kupono, on the contrary, was nearly independent. The transfer of the ahupuaa to a new chief did not carry with it the transfer of the ili kupono contained within its limits. The chiefs, previously holding the ili kupono, continued to hold them, whatever the change in the ahupuaa chief, having their own koeles (chiefs’ patches), worked by their retainers. There was, however, a slight tribute of work due to the ahupuaa chief; sometimes one or two days in a month, sometimes even less, or only certain days in the year. The ilis which were used as places of refuges and those of the god Kaili, did not render even this tribute. Such were Kaahumanu’, ilis in Waikiki.

On the ili kupono, Waimea on Hawaiia furnishes an eminent example. Nine-tenths of this ahupuaa are taken up with the independent ilis of Puukapu and Waikoloa, to say nothing of half a dozen small ones of the same kind. Accordingly when a Waimea ahupnaa was declared in late years a crown land, it was necessary to declare Puukapu also a crown land, as though not included in Waimea. Waikoloa was given by Kamehameha I to Isaac Davis, and it has remained in the Davis family ever since. When therefore the limits of Waimea were settled by the boundary commissioner, the Crown commissioners knew hardly more than they had previously of where the Crown land was situated. How much labor and confusion this principle has brought about remains yet to be seen.

Within the ilis all large kalo patches seem to have had specific names, especially on Oahu, which was the most microcosmie of the Islands. The koeles, or chief’s patches, more particularly. Kihapai’s, i. e., dry land patches, with their intervening ridges of small stones, or earth weeds, had also their appellation. These ridges of cultivation, often rows of sugar cane, too, were in cultivated sections, very frequently the boundaries of the ahupuaa, called iwi, bone—short for iwi kuamoo, backbone—and curving enough they are. Sometimes changed in ancient times, amidst fierce battling between the clans each chief could summon from his land.

The date of this division is fixed about twenty generations back in Hawaiian tradition, the names of the chiefs establishing it being given. The moku or district was fixed at the same time, such as Kona, Kau, Puna, Hilo, Hamakua, and Kohala on Hawaii. On Maui are some smaller divisions than the moku, called kalana, Lahaina being one of these. Wailiku, Waikapu, Waiehu, and Waihee were independent, belonging to no moku. On the map it is necessary to form a new district, and call it Wailuku, Nawaieha being too cumbersome and ill-understood. Olaa on Hawaii, it is said to have been independent of Puna and Waimea of Kohala. Otherwise the district division was very exact and comprehensive.

One other anomaly remains to be noted here. A large tract of forest land in Hamakua, Hawaii, was once cut off from a number of ahupuaas for the use of the whole district, and is called Kamoku to this day, becoming at the time of the “mahele,’ which must come next in our way, Government land.

No. 4.

We now come in regular course to a brief notice of the mahele.

The mahele was a phenomenon in national history not often repeated. “The mahele was, in one sense, a revolution. In another sense it was most eminently a conservative movement.

To write a full history of this change would require more leisure, or, more corectly speaking, more time and strength than most persons in our community and in active life have at their own command. It will only be in place here to indicate its main features. I am very well aware that there may be widely different views on this subject among those of the legal profession and those put forth here may be called decidedly unprofessional. It may be suggested, however, that occasionally the unprofessional opinion has the advantage. This is often the case with respect to theological matters, sometimes decidedly so in medical matters, and the common sense of honest jurymen frequently cuts at once through the entanglements of legal questions on both sides to the desired point of equity and justice to both sides.

The mahele was simply an endeavor on the part of the majority of the Hawaiian chiefs, and especially on the part of Kamehameha III, to secure to all parties what, on the ordinary principle of acquiring property, seemed to belong to them. It was contemporary with the organization of the department of the Hawaiian Government in 1845–’46.

The theory which was adopted in effect was this, that the King, the chiefs, and the common people held each undivided shares, so to say, in the whole Landed estate. Whatever the legal deduction from the status under the former feudal system might be, the fact in equity was acknowledged that whoever had a share in making the land valuable held an interest in that land. Legally speaking, the title of the whole was in the King. The King who conquered the whole, viz, Kamehameha I, had partitioned the lands among his warrior chiefs, retaining a certain revenue from them, in default of payment of which the land was forfeited. These chiefs did the same to those below them.

Kamehameha III for the common good waived his title to the whole, under conditions—conditions that those under the chiefs should be treated in like manner, and, moreover, that a certain portion, one-third, should be given to a common landed estate, called Government lands, the proceeds of which were to go to the public treasury, and which should furnish that facility for the acquirement of real estate in fee simple which is so necessary for the growth of a community.

In other words, the Hawaiian nation agreed to divide as individuals their as yet undivided inheritance, the King taking a share proportioned to the general idea of the dignity of his position. (It should be stated that the word mahele signifies division.) It was moreover agreed that there was to be a portion devoted to the general good in two ways, viz, by rendering it obtainable to those who desired land and by using the proceeds for the benefit of the public treasury. It will be seen that there was a double mahele—first of all amongst themselves, and second, of each with the general treasury.

This last was the trying point with the chiefs. It required no little effort to bring about its accomplishment, and no little self-denial and resolution on the part of those who thus gave up what they regarded as their lands. The scenes in the meeting of the council for this purpose have been described by eyewitnesses as thrillingly interesting. Almost everyone of those who took part in this peaceful but patriotic revolution has gone from the presence, we hope not from the remembrance, of this community. Among the ranks of these noble dead are Kamehameha III, and Kekuanaoa, Paki, Kekauonohi, John Ii, who was most active in bringing about the change, and a host of lesser chiefs. Messrs. Richards, Judd, Ricord, and afterwards Lee, were the leading spirits in inducing the chiefs to see the benefits of the new policy and system.

There were two great sacrifices made by the chiefs. The division with the Government we have noticed. Far be it from anyone to misappropriate these Government lands, thus conscientiously given up by the old Hawaiian chiefs for the national good. The other sacrifice was that of the kuleana, or land of the small tenant. These small tenants were permitted to acquire a full title to the lands which they had been improving for their own use. In the true view of the case, this was perfectly a measure of justice, for it was the labor of these people and of their ancestors that had made the land what it was. This subject will lead us to consider the land commission.

No. 5.

The lands having been divided, as we have seen in the last article, it became necessary in order to establish the real estate business of the Kingdom on a practical basis to give some formal evidence of title sanctioned by the law of the land. The mahele was an anomaly. The land commission, appointed to carry out the principles of the mahele, was another. Both were eminently practical and just in their idea.

Five gentlemen, John Ricord, William Richards, Z. Kaauwai, James Young Kanhehoa and John Ii, were appointed by the King in February, 1846, to hear testimony upon the claims of individuals, and to issue awards to the claimants for the land claimed by metes and bounds. These commissioners drew up a careful statement of principles to guide their conduct in making the awards.

This statement was approved by act of Legislature and made law. It was further ordained that no claim should be valid unless approved by them, and unless presented before a certain time. The only appeal was to the supreme court. The commissioners took the oath of office and held their first meeting for regular business in March, 1846. The first claim upon and award signed was to James Voss, on the lot at the south corner of Hotel and Alakea streets. The taking of testimony was an herculean task, when we consider that the number of claimants were over 10,000. It was found that the taking of testimony, the surveying of boundaries, and the making final award would each have to be separate stages of work. Accordingly, while the first volume of land commission records contain lengthy masses of testimony attached to each award, in the second volume awards only are given, the testimony being thereafter by itself in another series of separate volumes. The commissioners worked with most commendable energy, going to every part of the islands to meet the people and prepare for awarding the kuleanas.

Kuleana means, originally, a property or business interest in anything. The common people were in former times assigned certain portions of the chief’s lands, to occupy at the will of the chief. Generally speaking, there was a good degree of permanence in this occupancy, provided that service was duly paid to the superior. In 1839 a law was promulgated that no one should be deprived of his land without due cause, which law was a preliminary step to the subsequent one of giving to all those common people who would come forward, present their claim, their testimony, and pay the expenses of settling the whole matter a fee simple title in their improved lands. In the town of Honolulu all lots were to be subject to a commutation fee of one-fourth of their unimproved value to the Government. Elsewhere the award was in fee simple, without commutation. These awarded claims came to be known by the term “kuleana.”

After the testimony in regard to their existence was taken the next step was to scatter a horde of surveyors all over the Kingdom, with memoranda of claims, to survey each separate one by itself, and send in the survey to the office, generally on a sheet of foolscap paper. At the office they were copied in huge, un wieldly volumes—volumes, however, ten in number, of infinite value to the real-estate interests of this little Kingdom. Of the surveys, more hereafter. They were generally paid for by the piece, at the cheap rate of $2 to $3 per kuleana. The total expenses for the land commission expenses were all borne by the claimants, and amounted to from, $6 to $12 to each kuleana. Cheap enough; yet the poor natives were often a longtime in collecting the amount to pay over to the agent who distributed the papers containing award.

In fact, it seemed all like a dream to the common people, so long serfs under masters. All sorts of reports would spread through the country to the effect that the whole thing would be knocked in the head; that such and such lands were to have no kuleanas taken out of them, etc.

Then there was a vast deal of haphazard about the matter. In kalo patch land it was comparatively easy to determine where and where not the kuleana should extend, though many a contest between the claimant and konohiki chief’s man took place even there. It was impossible for the commissioners to go upon the ground, so that responsibility in a large measure depended on the surveyor. In dry or kula land, where the soil has to remain fallow for years between crops, it was difficult to decide what a kuleana should contain, and, as we shall see, there was much variety of practice.

No. 6.

Mention was made in the last number of the haphazard or lack of unform rule in establishing the boundaries and extent of kuleanas. The best illustration of this may be derived from an example. Three surveyors were sent to Hawaii to as many different districts to measure and report kuleanas. Directions, “to include what the claimant has cultivated and improved.” Surveyor No. 1, a stranger to the country, found the people cultivating on the kula land, say, two or three acres of upland kalo. Not taking into account the fact, alluded to in our last number, that it was necessary for the land to lie fallow for two or three years before another crop of kalo could be produced from it, he surveyed merely the amount under actual cultivation. The kuleanas were awarded accordingly, the poor people having no one to take their part, and as a consequence in many cases abandoning their newly-acquired property as utterly insufficient for their needs.

No. 2, a native Hawaiian, was assigned to a district where the resident American missionary was one who took an active interest in the new order of things, and who believed—and not without some reason—that the people had the main right to the land anyway, on general principles. The consequence of this was that “surveys were sent in from 15 to 30 and even 40 acres in extent, and were awarded.

Surveyor No. 3, meanwhile, after an arduous campaign among the kalo patches, with an ever-watchful konohiki to contest his progress, and to whom the reply to appeals for advice to the land commissioners was sent “Do the best you can,” came out into the kula lands of his district. Multiplying the amount under actual cultivation by the number of seasons in which it would have to lie fallow, the estimate was made of from 6 to 12 acres as the ordinary run of upland kuleanas, and surveys were sent in accordingly. Reports of what was going on in the neighboring districts soon came in and, rather puzzled thereby, our man lay on his oars for a few weeks to see what would turn up. Finding that his surveys, too, were approved of lie went on through the district on his own principles.

In defense of the above inconsistency the plea may be urged that the commissioners had such a mountain of business to dispose of that “anyway to get through” might well be their motto. To resurvey in all these cases was next to impossible, also to obtain full information. Then, while there lived a King who thus favored his subjects, it was expedient to make all speed possible lest a change might introduce worse confusion.

Another inconsistency was in the awarding of titles below high-water mark and on reefs in some instances and not in others. The immediate vicinity of Honolulu Harbor as compared with Pearl River and Kaneohe Bay furnishes a notable instance of this.

After the awards of the kuleanas came the awards to the lesser chiefs and to foreigners to whom lands had been given of the ilis which we have described above. They were generally though not uniformly awarded by their external boundaries, expressly stating in the award and in the patent based thereupon the excepting of all kuleanas contained therein.

The a hupuaas were awarded to the chiefs to whom they belonged in a similar manner, the exception including the ilis awarded as above, and also such ilis as by the statute 1 aw were declared on the basis of the mahele, as we have previously seen to be either crown or Government lands. Of course, when the mahele was made the division took place; the ahupuaa to one chief, or to the crown or Government, as the case might be, and the ili kupono, described in a previous number, to other chiefs, or the crown or Government, as the case might be. The crown and Government lands were expressly set forth by name in the statute at the same time that the land commission was created.

It is this existence of titles within titles unseparated one from another by especial survey that creates the unmitigated state of confusion that now exists on these islands. It might as well be confessed and made public that adequate steps may be taken if possible to clear up the confusion, heightened as it is tenfold by the fact that all the kuleanas are recorded each by its own individual configuration and extent with no general map of any district. In the prospectus, so to call it, of the land commission, it was declared necessary to know the “configuration and extent of the several claims.” The very important item of location was omitted. It was probably impossible to have carried out any general system of measurement which would have secured this, when we take into account the imperfect instruments employed by most who were employed in this really national work.

Another example from actual experience may come in here, perhaps to advantage. In Kalihi, Oahu, is an lli of Government land. A large part of it was taken up, as usual with the kuleanas of the people resident thereon. The remainder was in all conceivable shapes, mixed in the interstices of the kuleanas, and including, however, some very valuable land. For some years the sovereigns of the country diverted this land to their own use. When, afterwards, it was deemed advisable to use or dispose of the land to the benefit of the Government, a survey was necessary to find where the Government land was situated. To this end every single kuleana lot, to the number of fifty or thereabouts, had to be resurveyed and located, errors, inaccuracies, and magnetic variation all to be taken into account, and their descriptions made out of what remained, to agree with the adjoining kuleanas, the whole involving about two months of labor. The resultant remainder of government lots of land were worth somewhere near $1,500. More of this hereafter.

No. 7.

To sit in judgment on the past is not always advisable. It is easy, in the light of subsequent events, to perceive what would have been the wiser course. But it is not always easy to put ourselves in the places of our predecessors; to realize what difficulties may have beset them and what obstacles may have prevented the carrying out of their own conceptions of what should have been done.

This remark applies to the work of the land commission. The following imperfections in their work are very noticeable:

• First. That already noticed, including titles within titles, kuleanas within ilis, ilis within ahupuaas, and so on, without distinct specification of what was expected within. It has frequently occurred that persons have purchased estate on the basis of the acreage of the whole, and then found, to their dismay, that one-fourth or even one-half of the area specified was taken up in kuleanas, tioles in fact just as good as that of the larger estate around them. This has been a atanding grievance with purchasers in this Kingdom, and has tended to bring the kuleana system into disfavor.
• Second. The land commission ought to have been continued till all the land had been properly apportioned and award passed thereon by the commissioners, including in these awards also the crown and Government lands. The object aimed at, viz: the settling, for once at least, of titles, would then have been gained. The omission of the crown and Government lands has created uncertainly all over the group as to boundaries even to this day. The almost unlimited powers of the commissioners should have been used to put matters in a practical and accessible shape.
• Third. The number of steps requisite to procure a full title has been too great. First the mahele, then the award, then the royal patent. Now, in the town of Honolulu, we will say, A and B have adjacent lots. A procures his award, and immediately goes on, pays the Government commutation, and receives a royal patent. B merely contents himself with the land commission award, leaving the future to look out for the payment of commutation. A and B both sell to C. C cuts up his property into small lots and sells. Now in some or other of these lots there will be at the same time, land commuted for, and land as yet uncommuted for. D, who has purchased one of these heterogeneous titles, wishes a full title, and is obliged to hire surveyors, lawyers, and what-not to find the imaginary line in his property, dividing the patented portion from the unpatented, describe the unpatented portion, and take out his “R. P.” for the same in the name of the original awardee, dead, say twenty years ago. It would seem as if this threat of a government one-fourth ought to have been disposed of at the start.
• Fourth. While the surveys were carefully recorded and indexed, there was an unaccountable lack of uniformity in the methods followed in making them. It would seem as though a person having the practical knowledge possessed by the late Hon. W. L. Lee, for so many years president of the commission, would have issued certain uniform rules to the persons employed. Instead thereof, we have every possible method of measurement adopted, every conceivable scale employed, meridians pointing everywhere, non-marking of corners; in short, everything left to the sweet will of the man who was hired at from $2 to $3 per kuleana to do the measurement. Nor was one district assigned to one man. No less than a dozen tried their hands at waikiki, no one being required to guide himself by the notes of another. Of course overlaps and interlayers are the most common things imaginable. It has been the practice heretofore to regard the person holding the earlier award to take precedence in the case of an overlap and the one holding possession in the case of an interlay er. Some doubts in high quarters have been expressed, however, on this matter.

As we have said above, the real reason for all this looseness lies in the fact that these was little money to pay out and little time to wait for the work. It may be added that there was not then a single thoroughly competent land surveyor on the ground. The grounds for this assertion may be stated hereafter. Civil engineers there were, and amateur surveyors, but no thoroughly competent land surveyor.

To hasten the “quieting of titles” it was enacted by the Legislature that all claims not presented before a certain date should revert to the Government. This date was postponed several times. The land commission itself was driven to the policy of awarding titles by ancient boundaries, without survey—that is to say, simply by the name of the ahupuaa or ili, leaving the owners to fix the boundaries as best they could. In that way it was enabled to close its labors at the time prescribed by statute, viz, on the 31st of March, 1855. The receiving of evidence was finally closed on the 30th of December previous.

Even then an act had to be passed in 1862 “for the relief of certain Konohikis,” enabling some such who had received land at the time of the mahele to receive an award from the interior department for the same, up to a certain date, beyond which the land, in una warded, was to revert to the Government.

The question now comes up: Will these lands thus una warded now be claimed by the Government? And, moreover, will similar lots in town be thus claimed? The view of the case taken at the time was this: “For the good of the community, land owners must be compelled to go through certain forms of law, failing in which the lands are for feit.” Was or was not this, in the circumstances, a constitutional act?

No. 8.

The land in the Hawaiian Islands was considered at the time of the mahele as belonging to the nation. It was divided off according to principles deemed equitable and titles were given, emanating really from the Government, representing the nation, by the King as the executive power. This, I think, is the true theory of the then new departure in land matters. The power to whom were given the Crown lands was not the power that gave legality to the new titles. The Crown lands were set aside for the private emolument of the King. The Government lands were for the benefit of the whole, for the parties as a whole, that divided the land.

When, therefore, the rule was made, or law passed, that lands not awarded should vest in the Government, it would seem to have been perfectly in the power of those making the law so to enact. It hardly seems proper, therefore, at the present day to assume that such lands should revert to the Crown as “Crown lands.” They should revert to the Crown as the representative of the Government, not for the private use of the King, but for that which the King represents in his official capacity.

Where parties have been a long time in actual occupation of such lands, it would seem as if some liberal terms might be adopted which would facilitate the obtaining of a title, without waiving the right of the Government, against which the statute of limitations, i. e., of twenty years’ occupation, does not hold.

The government lands about the year 1850 were put into the market throughout the islands. Previous sales had been made in a few localities, especially in Makawao and Manoa Valley. Agents were appointed in the different districts to receive applications, to attend to the surveys, and to report; also to collect the money for the land and forward to the interior office. The same desultory system of surveying was followed as in the case of kuleanas. Probably, between the years 1850 and 1860, nine-tenths of the available government land was taken up. The agents were, some of them, the American missionaries, who considered it not inconsistent with their position to assist the people in obtaining lands in advance of mere speculators. A commission was allowed; in at least one case it was declined, all service being rendered gratis.

After all this selling of land the Government were perfectly in the dark as to what remained. A lull in the business took place, and when in after years some of the remnants were applied for, it was impossible to proceed with any confidence in disposing of them. In addition to this, a new policy came in, with another administration, of refusing to sell land, partly from the revival of the ancient theory that the King was the Government; partly from a feeling that a fixed revenue might be derived from the remainder; partly from the cropping out of the ever-prevalent dislike of seeing lands go into the hands of foreigners; and partly from the difficulty of proceeding intelligently to work.

For instance (and this is from actual experience), a tract of, say, 10 acres, in Palolo Valley remained to the Government. It lies at the foot of the steep valley side, and may or may not extend up that side or pali to its summit. The land above was awarded by survey, and to find how far down the face of the mountain it may extend it is necessary to run all the old lines of that upper land; probably two or three days of hard work would be none too much to do this in a reliable manner. In fact, one can be sure of nothing in such cases without surveying all the adjoining lands. A perfect incubus this has been on the disposal of the remaining government lands.

It was this state of things, as much as anything else, that led the late minister of interior, Dr. F. W. Hutchison, to institute the Government survey. A general survey seemed the only possible way to get at the facts of the case. It would be perfectly impossible to-day for the Government to state definitely what land it possessed in any one district.

Add to this the need of general maps for business purposes, for assessment of taxes, for any discussion of schemes for the benefit of the country, for searching of records, for the information of courts of law, of strangers, especially of scientific men, to say nothing of navigators, and one sees abundant reason why a general survey should be made.

Moreover, the Government failed in one important part of its duty, namely, in locating its own grants and awards. It is but fair that it should undertake that work as far as is practically useful and is possible without too great expense.

Another demand for general maps lies in the fact that while a person may in a few years become a walking encyclopedia of information respecting localities and titles, etc., in a district, he is liable to leave at any time, when all his stores of knowledge become annihilated in a moment, no record thereof being left for the benefit of his successor.

There is now remaining to be noticed the “boundary commission” business. As was stated before, a large number of ahupuaas and ilis were awarded by name only. The land commission having ceased to exist, it became necessary to provide some means of legalizing the lines of boundary between awarded lands wherever they had not been awarded by survey. This and nothing else is the business of the boundary commission. It is not concerned with boundary disputes as such. It is only when the locality of an award, and in a very few cases of a royal patent, has nothing but the ancient traditions and testimony founded thereon to determine it that the commissioner is called upon by the owner to issue a “certificate” defining it, “either by survey, by natural topographical features, or by permanent boundary marks.” It will be seen that a description by means of ancient names of localities—wahi pana”—is not in the limits of the statute.

The act for the appointment of boundary commissioners was passed in 1862. At first there were two for each gubernatorial district, the police or district justice in each place acting as umpire in case they disagreed. This, as might be expected, was a failure, and subsequently the late G. M. Robertson, of the supreme bench, became sole commissioner for the group. In 1868 the law was modified, since which time there have been four commissioners, one in each main district. Their work has progressed very slowly owing to various causes.

It is a matter of regret that there has been so little uniformity in their methods of procedure. Of a large number of lands thus defined no maps whatever have been filed in the interior department. Complaints often arise that sufficient notice is not given to parties concerned residing, as they oftentimes do, at a distance. The best way of procedure would seem to be this: Maps of the lands in question, prepared from good surveys by persons approved at the interior office, and containing such full information as to be intelligible to all concerned, should be on file in some public office, say for ninety days previous to the decision, and due notice given thereof in order that all parties may consider the matter at their leisure.

A better organized land office is very much needed. The general clerk of the interior office has too great a diversity of business to give due attention to it. The second clerk is mainly occupied in making out royal patents on awards and furnishing copies of documents. The surveyor-general has the topographical survey on his hands, while his assistants are bandied about from one kind of job to another, the whole groaning under the weight of the entanglement of old and new that has been previously pointed out in these papers.

The object aimed at should be that the Government should know the location of its own patents for land, and be able to furnish information concerning the same. It should know, too, what is left unpatented, and it was more for this object than any other that the then minister of interior, F. W. Hutchison, instituted the Government survey in 1870.