Waihona Aina

Political History of the Royal Patents

Political History of the Royal Patents
Society for Hawaiian Archaeology Conference, 12-14 November 2004
Victoria S. Creed, Ph.D

Turning Hawaiian land into a commodity in the mid-19th century was envisioned by King Kamehameha III as a means of protecting the Hawaiian people from a land takeover by invading forces, by foreign businessmen as a means of providing investment incentives, and by the missionaries as a means of improving the tenant farmer/maka‘ainana status. Mining Waihona Aina database for Royal Patents we show how the government has dealt and continues to deal with some of the problems of this policy.

The Royal Patents are the final step in the Land Commission award process (see RP database at waihona.com). Changes in governmental policy, and political attitudes are reflected in 157 years of changed wording. Issued first in 1847, and still being issued in 2004 (as Land Patents) these documents show an array of evolving political positions and even a few fanciful ones. In this paper, I use the term Royal Patents to distinguish this series from the Land Grant Patents (sales of government lands), but, in fact, Royal Patent (or “Palapala Sila Nui”) is wording used for confirmation of both the Land Commission Awards and the Land Grant purchases. The word “Royal” was crossed off or left out in both sets of land transactions shortly after the overthrow of the Kingdom. Thereafter, they were often both titled Land Patents, still causing confusion in surveys and other documents, such as Boundary Commission records. No. 3606 was even entered in this series of Royal Patents by mistake by the government, who created the systems, when it actually belonged with the land grants; it was later transferred to the Land Grants system. The “Royal Patent” series, as I use the word, are the series of patents issued to claimants in the Land Commission records before and after the overthrow.

Background
The 14,456 Land Commission records (30,000+ documents) shown in our waihona.com records as the Mähele database, were produced within an incredibly short time-span (1846 to 1854) across the island chain and this snap-shot time period makes these documents unique recordings of any kingdom’s or government’s land holdings anywhere in the world. Although political and social reasoning and wide-spread disease and death kept some people from claiming their worked lands at all, and although the government disallowed other lands people had traditionally used and transferred them to others or to the government for a variety of other reasons, and although some residents eschewed the Land Commission process and bought their land outright as grants, nevertheless, the majority of land in the Hawaiian Islands is described with more and less detail in these records. The basic format of the Land Commission awards is a claim for land and a testimony which acts as an affidavit, declaring the claim is correct, or shows what is correct, so it may be awarded. Then the Commission awarded or rejected the claim. The award is either in fee simple (‘alodio), or “Freehold less than Allodial” (kuleana malalo o ke ‘ano ‘alodio). The second of these terms means the government still retains an interest and must be a party to mortgages, sales or exchanges (Indices of Awards, Section 1. Principles Adopted by the Board of Commissioners to Quiet Land Titles in their Adjudication of Claims presented to them, p. 10). Once awarded, the land had to be surveyed, and where boundaries were not obvious, unknown or contested, the Boundary Commissioners took over and tried to settle them. Once the boundaries were settled, the awardee could patent the land, for outright ownership for a fee. Many awards remained for a long time as “Freehold less than Allodial” because there was too much land for too few surveyors to document. At the time of patenting the patentee (or his heirs or assigns) pays the commutation fee or receives a fee waiver.

Distinguishing Significance of Land Commission claims and Royal Patents
The Land Commission awards are the legal title of the land holder, and that claimant, his heirs or assigns (present owners), has/have legal standing in a court of law concerning that piece of land. It also provides informantion about the land and those who occupied it. Even when claims are not awarded, the claimant’s heirs have legal standing in a court of law concerning burials and artifacts uncovered. The importance of the Royal Patent for the land holder, is that the Government (whether Kingdom, Republic, Territory, or State) relinquishes its interest in the property (J. Achiu, 2004 and Jon J. Chinen, 2002) subject to qualifications, Since Statehood these qualifications have multiplied.

For the archaeologist, the importance of the the Land Commission claims is their location, description and cultural content. In the claims we have the land seen from the 1st person perspective, and in the testimony from a 3rd person perspective within the same time period. The importance of the Royal Patents is their finalized land survey (mentioning walls, fish ponds, roads, river beds) and the title history up to the time of patenting. This becomes an official, non-personal perspective which can be linked back to the other two perspectives. As an aside, the Land Grant series (LG database) has only this official perspective.

The Time Period of the Records of the Royal Patents
As I started transcribing the Royal Patents I was astounded to learn that we are still in the process of completing the Land Commission Board work today. I had thought all these land records were history! Through the year 2002, 8,738 of these Patents have been issued on the 8,574 Land Commission Awards. Of these, 208 are non-entries (“No patent issued”), 105 or more are duplicates and cancelled, and about 1500 of them are only portions of original Land Commission Awards. I am not ready to accurately calculate how many more patents could be executed, although it might be in the neighborhood of another thousand.

Form of the Royal Patent
The basic form of the Royal Patent is: a) a number, b) a statement that the Patent is in confirmation of a Land Commission claim, c) a statement that the Board of Commissioners award the land as either “Fee Simple” or as “Freehold less than Allodial;” and generally, the number of the Land Commission award, d) a statement that a commutation fee was due and paid, waived or not due, e) a statement showing the government representative i.e., King, Regent, Queen, Governor, or the State Director of the Department of Land and Natural Resources, grants the land to the patentee in fee simple, f) a statement showing where the land is situated by ‘ili or/and ahupua‘a, district, and island, g) a survey, h) An express exemption for rights of native tenants who have land within an awarded parcel (“Ua koe ke kuleana o na kanaka”), i) a paragraph stating the more or less exact amount of land, quantified by acre, fathom, rods roods, chains or square feet, j) a statement linking the patentee and the land in fee simple, subject to taxes, and as time goes by, to other qualifications. k) the final paragraph gives the date and the signatures of the contract, l) Sometimes there is an attachment overlaid showing fees paid.

The survey is the heart of the document and makes each patent unique.

Following the survey are the two basic qualifications for all patents until the time of the Territory: 1) the specific amount of land “excepting and reserving to the Hawaiian Government all mineral or metallic mines of every description” and 2) “subject to the taxes to be from time to time imposed by the Legislative Council equally, upon all landed property held in Fee Simple.” This wording does not significantly change during the entire monarchy. At the time of the territory, there are several patents with no qualification included (see 8378). Following Statehood, Reserving to the State of Hawaii, its successors and assigns, there is a list of 19 minerals, including coal, gold and silver, which are not geologically possible in our volcanic islands, but does include all geothermal resources, in, on, or under the land, fast or submerged, except for materials used in construction, like sand, gravel and rock.

In 1986 through 1998, reservations to the State include all surface and ground waters, and perhaps of interest to archaeologists “All prehistoric and historic remains found in, on or under said land.” This rule changed after the Historic Preservation Law was enacted. We see the tolerance of national government reflected in the qualifications 1986 up through the year 2000. The “Patentee shall not be in support of any policy which discriminates against anyone based upon race, creed, sex, color, national origin, or a physical handicap.” In 1995 descrimination is forbidden against anyone with the HIV infenction. There are no 1999 patents, and there is a political shift to less tolerance or perhaps lack of care or need to be specific about intolerace, starting in the year 2000. In 2000 the 1986-1998 reservations are dropped, and we again have the reservation only of “all kinds of mines and minerals” of the earliest documents in this series.

Distribution of Patents Over Time
In the eight years after the enactment of the land reform, King Kamehameha III executed 1783 patents (average 222+ a year) . During the 8 ½ years of Kamehameha IV’s regnum he executed 3680 patents (average 433 a year). Kamehameha V processed 979 in 8 years (average 108 a year). One wonders what might have happened if Lunalilo had lived longer for in the one year in office, Lunalilo executed 783 patents. In King Kalakaua’s 17-year reign he executed 1077(?) patents (average 63 a year). Queen Liliu‘okalani executed 271 patents in her two years, as well as others in the name of Kalakaua when he was off visiting foreign lands (average 135 a year). Here is a preliminary analysis table of the entire time period.

Table RPs (Preliminary Analysis)
Signer Regnum No. of years No. of RPs
King Kamehameha III 1825-1854 (1847-1854) 8 1783
King Alexander Liholiho, Kamehameha IV (Jan. 11) 1855-1863 (Nov.30) 8.5 3958
King Lot, Kamehameha V (Nov) 1863-1872 (Dec. 11) 9 270
King W.C. Lunalilo (Jan. 2) 1873-1874 (Feb. 3) 1 783
King David Kalakaua (Feb) 1874-1891 (Jan. 20) 17 1077
Queen Liliu‘okalani (Mar) 1891-1893 (July) 2 271
President Sanford B. Dole (July) 1893-1899 30 104
Governor Sanford B. Dole 1900-1903 (July) 3 64
Governor W. Carter (Sept) 1903-1907 4 31
Governor E. Mott-Smith. Act. Gov. 1907-1908 1 4
Governor W.F. Frear (Feb) 1908-1913 (Sept) 6 111
Governor L. Pinkham (Feb) 1914-1917 4 15
Governor C.J. McCarthy (Jan) 1918-1921 (Mar) 4 23
Governor W.R. Farrington (July) 1921-1927 (Oct) 6 19
R.C. Brown, Act. Gov. (Nov) 1927-1928 (Mar) 1 38
Governor W.R. Farrington (Apr) 1928-1929 (Jun) 1 44
Governor L. Judd (Aug) 1929-1934 6 30
C. Hite, Act. Gov 1934 1 2
Governor J.B. Poindexter 1934-1941 7 44
C. Hite & E.K. Kai, Act. Governors 1942 1 4
Governor I.M. Stainback 1943-1953 10 25
Governor S. King 1853-1957 4 15
Governor W.F. Quinn 1858-1962 5 23
1963 None
BLNR 1964-2000 36 yrs 120

The speed or lack of time during the monarchy may reflect the time required to do surveys and process papers after the initial awards.

There are a number of questions that come up during this work. The copy one receives of the patents is one copied from the original documents by a clerk. They don’t appear to be the original documents. One question is whether a patent is valid without signatures and a date. I’ve found one answer. Two Royal Patents were re-issued many years later with the signatures and dates added, by legal request. There are other patents that still are missing signature and dates and I don’t know whether they too will be submitted for re-issue and whether the originals include this information or not. Another question, is what happens when a patent is issued on a claim that was not awarded? You would think that this too is an illegal situation.

There are occasional pages missing. I checked with BLNR on one of these cases, and they don’t have the page either. Will the missing page exist anywhere?

I would like to factor in political events, such as the reciprocity treaty, the overthrow of the Kingdom and other significant events dealing with land here in Hawaii, but that study is premature until the database is entirely finished, since many consecutive documents exist in various different volumes.

Turning Hawaiian land into a commodity in the mid-19th century was envisioned by King Kamehameha III as a means of protecting the Hawaiian people from a wholesale-land takeover by an overlay culture, by foreign businessmen as a means of providing investment incentives, and by the missionaries as a means of improving the tenant farmer/maka‘ainana status. Today, we are still coming to grips with all of these problems.

1 Chinen, Jon J., The Geat Mahele: Hawaii’s Land division of 1848,” U.H. Press, 1958, p. 9.
2. Achiu, Jason, State Archives, personal comm., 2004, and Chinen Jon J., They cried for Help: The Hawaiian Land Revolution of the 1840s and 1850s, Philadelphia, Xlibris Corporation, 2004.
3. Waihona 'Aina Corp. purchased copies of all executed patents of this series, which are located at the Land Division of the Department of Land and Natural Resources.
4. This figure does not account for the Land Grant Patents which were being done simultaneously and are also still being “executed.”
5. Records of Kalakaua are interspersed throughout other monarchy records.