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labor taxes. Native Hawaiians who had already left their land were given the opportunity to return by applying for any uncultivated lands. The Constitution of 1840 also provided that the king could lose no land without his consent—an effort to deal with the fear of alienation of land to foreigners. However, the constitution provided that property already held by foreigners would not be reclaimed by the crown—an effort to avoid conflict with foreigners. 18/
The Constitution of 1840 did not totally put to rest land disputes— problems and episodes continued. In 1841, the king announced a plan to allow island governors to enter into 50-year leases with foreigners. 19/ As discussed below, a large number of acres were conveyed to foreigners. In 1843, in part because of a lease dispute, the British warship Carysfort entered Honolulu, and its captain took over the government for five months. 20/ Although Britain repudiated the captain's action, the episode was a clear mark of problems to come.
The Great Mahele
Because of the increasing pressure for change in the land tenure system, in 1845 the legislature provided for, and the king established, a Board of Land Commissioners. 21/ The Commission was charged to conduct "the investigation and final ascertainment or rejection of all claims of private individuals, whether natives or foreigners, to any landed property acquired anterior to the passage of this act..." 22/ Existing land law was to be the basis for its conclusions, including "native usages in regard to landed tenures." 23/ The Commission had five members, of whom two were native Hawaiians, one half- Hawaiian, and two westerners. 24/
The Commission first examined building lots in Honolulu and Lahaina, since this land was already outside the traditional feudal scheme. 25/ In determining who was entitled to land in conveying plots, the Commission stated that it found "no native rights of occupancy in this plot." Based on those awards, the Minister of the Interior was authorized to issue fee patents. A number of land disputes within the foreign community were thus resolved. 26/
The next step was the adoption by the Commission in 1846 of "Principles," ratified by the legislature. The Commission's goal was "total defeudalization and partition of undivided interests. " 27/ The Principles stated:
- If the King be disposed voluntarily to yield to the tenant a portion of what practice has given himself, he most assuredly has a right to do it; and should the King allow to the landlord one-third, to the tenant one-third and retain one-third himself, he, according to the uniform opinion of the witnesses, would injure no one unless himself;...According to this principle, a tract of land now in the hands of landlord and occupied by tenants, if all parts of it were equally valuable, might be divided into three equal parts... 28/
In fact, no action was taken on this recommendation, and it was not adopted as a way to implement the division. 29/ The king and chiefs did not intend to divide the land in thirds with the tenants. 30/ The statement that the land was divided into three parts—one part to the king, one part to the chiefs, and one part to the common people--is wholly erroneous. 31/ Therefore, how to fulfill the Principles was debated at length. On December 18, 1847, a formulation drafted by westerner Justice William Lee was adopted by the king and chiefs
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