Contentious business: merchants and the creation of a westernized judiciary in Hawai'i.

• Author: Schneider, Wendie Ellen

There it towered where each of its antecedents had stood in a cloud-hidden unremembered past

--W.S. Merwin, The Mountain(1)

On October 8, 1841, Henry Skinner made history in Honolulu. Skinner, a British merchant, sued John Dominis, an American sea captain, for breach of contract. Dominis had taken $10,000 of Skinner's money to invest in goods in China, and the two disagreed about the disposition of the cargo that Dominis had acquired. The content of their dispute was hardly noteworthy, but the forum in which it took place was: Skinner broke with local tradition by taking a mercantile dispute to the Kingdom of Hawai'i's courts(2) for resolution. Previously, such disputes had been handled by the foreign merchants themselves in arbitration proceedings. Skinner's enthusiasm for the monarchical courts was short-lived, however. After a jury was impaneled on October 13, Skinner "objected to all the jury," primarily because of the predominance of Americans, and, in the words of an observer,"[p]rotested against The Court!"(3) Skinner's case was subsequently dismissed by the government after he refused to attend a retrial. Skinner then attempted to demand damages from the King himself, Kamehameha III.(4)

Skinner was no lawyer, and he ultimately gained nothing from his ill-considered innovation. Nonetheless, his case is a turning point in Hawaiian legal history.(5) This Note seeks to demonstrate both that Skinner's case signaled a crucial shift in the disputing habits of foreigners in Hawai'i and that recognizing this shift would correct the conventional understanding of Hawai'i's judicial westernization held by courts and scholars. In particular, they have used a "recuperative" model of historical exposition as a crucial technique in the legal determination of traditional Hawaiian rights. This model seeks to recover promises made and broken by the legal system.(6) By focusing on the creation of a westernized system of land ownership, the "recuperative" model seeks to reveal a more generous understanding of the early laws establishing the rights of Hawaiian cultivators.(7) While this model does much to uncover previously neglected alternatives, it relies upon a fundamentally incomplete narrative of the founding of Hawai'i's courts. This Note suggests that, by ignoring the role of the merchants in the creation of a westernized judiciary, modern courts overestimate the relevance of judicial precedents of the Kingdom and underestimate the extent to which the first courts were foreign impositions on a plural legal system.

Before turning to the conflict among different legal systems, it is useful to recall Hawai'i's political situation. The shift in disputing patterns and the creation of a westernized legal system were also integral parts of a larger process of growing foreign control over Hawai'i. In turning to the Kingdom's courts, Skinner was the first in a long line of foreigners to demand the application of international (largely American) commercial law. As a result, during the 1840s a western-style legal system was adopted and largely staffed by whites;(8) the rest of the government followed suit rapidly thereafter.(9) Foreign domination of the Hawaiian government long preceded actual annexation by the United States in 1898.(10) Thus, the story of the collapse of merchant arbitration has a role in the narrative of imperial expansion in Hawai'i. While the political consequences of the merchants' shift to Kingdom courts are dramatic, their motives for making this transition remain unexplored. Before the 1840s, foreigners sought to resolve disputes among themselves through arbitration. They were unwilling to take the risk of turning to courts under the authority of Hawaiians, whom they distrusted.(11) While there are a number of very good accounts of Hawaiian history covering this period,(12) none fully explains how merchant arbitration broke down so dramatically. Land hunger--foreigners' desire to hold their land in fee simple, without fear of eviction by the King--is often thought to be the driving motivation. Yet, desire for land does little to account for the growth of commercial litigation.(13)

To explain why Skinner and other foreigners turned to Hawaiian courts, this Note emphasizes two developments that have been neglected: (1) the role of foreign merchants in provoking the westernization of Hawai'i's judiciary;(14) and (2) the interaction of the multiple legal systems active in Hawai'i at the time.(15) What occurred in the 1840s was a breakdown of the norms governing the balance between different legal systems--a breakdown in which merchant interests predominated. But this breakdown did not simply shift merchant litigation from arbitration to Hawaiian courts. It also laid the foundation for an unprecedented unification of legal activity in Hawai'i under a newly-created and exclusively western court system.

This Note begins, in Part I, with a summary of modern courts' "recuperative" interpretation of the history of judicial westernization in the 1840s and the problems with reliance on land hunger as an explanation for westernization. Part II examines in greater detail the different systems of justice that co-existed during the 1830s and describes the often-overlooked world of merchant justice. Part III discusses the breakdown of this system in the early 1840s. The results of the change--challenges to Hawaiian sovereignty, the growing Caucasian role in Hawaiian government in the 1840s, and the culmination of a process of judicial unification--are briefly outlined in Part IV. Finally, Part V suggests some of the implications of this reevaluation of foreign involvement in the establishment of a western-style judiciary in Hawai'i.

1. REVISITING THE 1840S(16)

   The crucial stages of judicial westernization in Hawai'i occurred in the 1840s. Modern courts have, therefore, revisited the history of this decade to discover the nature of traditional Hawaiian rights. In large part, this history has drawn on a "recuperative" model of legal change that seeks to uncover alternative trajectories that might have preserved a greater degree of Hawaiian autonomy. This Part briefly introduces the historical background to Hawai'i in the 1840s and then describes the courts' interpretation of this important decade. It concludes by questioning the modern courts' reliance on western land hunger as the sole motive force behind westernization and argues that one of the limitations of the "recuperative" model is its neglect of legal pluralism.

   1. Historical Background

      Even as it was poised to embark on further changes, Hawaiian society in the 1830s and 1840s had just undergone several dramatic transformations. Since the time of Captain James Cook's visit to the islands in 1778, the archipelago had been unified into a single Kingdom in 1810 by Kamehameha I, an ali'i (aristocrat) from the island of Hawai'i. For reasons still debated by scholars,(17) Kamehameha I's successors chose to make a second significant change after his death in 1819 with the abolition of the traditional kapu (taboo) system, which had ascribed divine authority to kings and imposed harsh sanctions for insubordination. The practical consequence of the abolition was to encourage a search for alternate sources of legitimacy. Some ali'i seized upon both Christianity, when it arrived in the islands, and the laws advocated by the missionaries, as new sources of power and authority.

      Meanwhile, on the other side of the globe, American Protestants were turning their attention to Hawai'i. The arrival of a Hawaiian youth named Opukahai'a in New Haven in 1809 fueled support for a Hawaiian mission.(18) The American Board of Commissioners for Foreign Missions (ABCFM), an umbrella group composed of northeastern Protestants, particularly seminarians from Yale, Dartmouth, and Princeton, sent its first group of missionaries to Hawai'i in 1820.(19) They met with rapid success. Ka'ahumanu,(20) the regent and Kamehameha I's widow, supported the missionaries and employed them in her service.(21) After Kamehameha II's death in 1824, ali'i aligned with Ka'ahumanu were baptised, signaling the political ascendancy of the missionaries.(22) Throughout the 1830s, members of the mission took on important advisory roles in the Hawaiian government.(23)

      In the 1840s, under pressure from foreign governments and with the guidance of his missionary advisors, Kamehameha III (1824-1854) instituted a sweeping legal transformation in Hawai'i. His reign encompassed a number of radical changes in Hawaiian law, including the introduction of constitutional government and fee simple land tenure. One later nineteenth-century judge described the years 1839 to 1852 as a "peaceful but complete revolution in the entire polity of the Kingdom...."(24) It is this period that has drawn the most attention from modern courts.

   2. Judicial Histories

      Hawaiian courts have increasingly turned to history in their construction of a judicial basis for Native Hawaiian fights. The story of the westernization of the Kingdom courts, in particular, has assumed prominence recently, as lawyers and activists search for legal solutions to the problems faced by Native Hawaiians.(25) The Hawaiian state courts have encouraged such efforts through their recognition of the continuing vitality of Native Hawaiian fights based on precedents and statute law of the Kingdom of Hawai'i.(26) Land fights,(27) water fights,(28) fishing and water access,(29) and gathering rights(30) all have been examined with reference to the legal history of the Kingdom.

      These decisions have used what might be called a "recuperative" model of history, building on Robert Gordon's description of one of the aims of critical historicism as being to "recover suppressed alternatives."(31) One version of this model depicts law as broken promises.(32) Where the law guarantees certain rights to all, for example, exigencies of power dictate that only some can enjoy those...