1852 Constitution of the Kingdom of Hawaii

For other versions of this work, see Constitution of Hawaii.

Constitution

 

Granted by His

 

Majesty Kamehameha III.

 

King of the Hawaiian Islands,

 

by and with the advice and consent of

the nobles and representatives of

the people in Legislative

Council assembled.

June 14, 1852.

 

Honolulu.

Printed by Order of the Legislature.

1852.

Constitution,

Granted by His Majesty Kamehameha III. King of the Hawaiian Islands, by and with the advice and consent of the nobles and representatives of the people in Legislative Council assembled, June 14th, 1852.

Declaration of Rights.

Art. 1. God hath created all men free and equal, and endowed them with certain inalienable rights; among which are life, and liberty, the right of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

Art. 2. All men are free to worship God according to the dictates of their own consciences; but this sacred privilege hereby secured, shall not be so construed as to justify acts of licentiousness or practices inconsistent with the peace or safety of the Kingdom.

Art. 3. All men may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.

Art. 4. All men shall have the right, in an orderly and peaceable manner to assemble, without arms, to consult upon the common good; give instructions to their Representatives; and to petition the King or the Legislature for a redress of grievances.

Art. 5. The privilege of the writ of Habeas Corpus belongs to all men, and shall not be suspended, unless by the King, when, in cases of rebellion or invasion, the public safety shall require its suspension.

Art. 6. The right of trial by jury, in all cases in which it has been heretofore used in this Kingdom, shall remain inviolate forever.

Art. 7. No person shall be subject to punishment for any offense, except on due and legal conviction thereof, in a court having jurisdiction of the case.

Art. 8. No person shall be held to answer for any crime or offense (except in cases of impeachment, or for offenses within the jurisdiction of a police or district justice, or in summary proceedings for contempt,) unless upon indictment, fully and plainly describing such crime or offense; and in the trial of any person on the charge of any crime or offense, he shall have the right to meet the witnesses who are produced against him, face to face; to produce witnesses and proofs in his own favor; and by himself, or his counsel, at his election, to examine the witnesses produced by himself, and cross-examine those produced against him; and to be fully heard in his defense.

Art. 9. No person shall be required to answer again for an offense, for which he has once been duly convicted, or of which he has been duly acquitted upon a good and sufficient indictment.

Art. 10. No person shall be compelled, in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law.

Art. 11. No person shall sit as judge or juror, in any case in which his relative is interested, either as plaintiff, or defendant, or in the issue of which the said judge or juror may have, either directly or through a relative, any pecuniary interest.

Art. 12. Slavery shall, under no circumstances whatever, be tolerated in the Hawaiian Islands; whenever a slave shall enter Hawaiian territory he shall be free; no person who imports a slave, or slaves, into the King’s dominions shall ever enjoy any civil or political rights in this realm; but involuntary servitude for the punishment of crime is allowable according to law.

Art. 13. Every person has the right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and effects; and no warrants shall issue, but on probable cause, supported by oath or affirmation, and describing the place to be searched, and the persons or things to be seized.

Art. 14. The King conducts His Government for the common good; for the protection, safety, prosperity and happiness of His people; and not for the profit, honor, or private interest of any one man, family or class of men among His subjects. Therefore in making laws for the nation, regard shall be had to the protection, interests and welfare not only of the King, the Chiefs, and Rulers, but of all the people alike.

Art. 15. Each member of society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his proportional share to the expense of this protection; to give his personal services, or an equivalent, when necessary; but no part of the property of any individual, can, with justice, be taken from him or applied to public uses without his own consent, or that of the King, the Nobles, and the Representatives of the people. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.

Art. 16. No subsidy, impost, duties or tax of any description, shall be established or levied, nor any money drawn from the public treasury under any pretext whatsoever, without the consent of both branches of the legislature; provided that the Legislature shall make provision, in the annual bills of appropriation, for the emergency of war, invasion, or rebellion; and the Minister of Finance shall render a detailed account to the Legislature of any expenditure made under that provision.

Art. 17. All retrospective laws are unjust; therefore, no such laws shall ever be passed.

Art. 18. The Military shall always be subject to the laws of the land; and no soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by the Legislature.

Art. 19. All elections by the people shall be by ballot.

Art. 20. Every elector shall be privileged from arrest on election days, during his attendance at election, and in going to and returning therefrom, except in cases of treason, felony, or breach of the peace.

Art. 21. No elector shall be so obliged to perform military duty, on the day of election, as to prevent his voting, except in time of war or public danger.

Form of Government.

Art. 22. The Government of the Kingdom, is that of Constitutional Monarchy, under His Majesty Kamehameha III, His Heirs, and successors.

Of Powers.

Art. 23. The Supreme Power of the Kingdom, in its exercise, is divided into the Executive, Legislative and Judicial; these are to be preserved distinct; the two last powers cannot be united in any one individual or body.

Of the Executive Power.
Section 1. The King. His Prerogatives.

Art. 24. The King shall continue to be the Supreme Executive Magistrate of this Kingdom under the title of His Majesty.

Art. 25 The crown is hereby permanently confirmed to His Majesty Kamehameha III. during his life, and to his successors. The successor shall be the person whom the King and the House of Nobles shall appoint and publicly proclaim as such, during the King’s life; but should there be no such appointment and proclamation, then the successor shall be chosen by the House of Nobles and the House of Representatives in joint ballot.

Art. 26. No person shall ever sit upon the throne who has been convicted of any infamous crime, or who is insane or an idiot. No person shall ever succeed to the crown, unless he be a descendant of the aboriginal stock of Aliis.

Art. 27. The King is the Commander in Chief of the Army and Navy, and of all other Military forces of the Kingdom by sea and land; and has full power by himself, or by any officer or officers he may appoint, to train and govern such forces, as he may judge best for the defense and safety of the Kingdom. But he shall never proclaim war without the consent of His Privy Council.

Art. 28. The King, by and with the advice of His Privy Council, has the power to grant reprieves and pardons, after conviction, for all offenses, except in cases of impeachment.

Art. 29. The King, by and with the advice of His Privy Council, convenes both Houses of the Legislature at the seat of Government, or at a different place, if that should become dangerous, from an enemy, or any dangerous disorder; and in case of disagreement between the two Houses, or between His Majesty and them, He adjourns, prorogues, or dissolves them, but not beyond the session of the next year: under any great emergency, He may convene both, or either of them to extraordinary sessions.

Art. 30. The King has the power, by and with the advice of His Privy Council, to make treaties, and appoint Ambassadors, other public Ministers and Consuls who shall be commissioned, accredited and instructed agreeably to the usage and laws of nations.

Art. 31. It is His prerogative to receive and acknowledge ambassadors and other public ministers; to inform the Legislature by Royal Message, from time to time, of the state of the Kingdom, and to recommend to their consideration such measures as he shall judge necessary and expedient.

Art. 32. He has the power, by and with the advice of His Cabinet, and the approval of His Privy Council, to appoint and remove at His pleasure any of the several heads of the Executive Departments, and he may require information in writing from any of the officers in the Executive Departments, upon any subject relating to the duties of their respective offices.

Art. 33. It is his duty to see that the Treaties and Laws of the land are faithfully observed and executed.

Art. 34. The King has the power from time to time, to assemble His Cabinet or Privy Councillors to advise with him agreeably with the Constitution and Laws of the land.

Art. 35. The person of the King is inviolable and sacred; His Ministers are responsible; to the King belongs the Executive power; all laws that have passed both Houses of the Legislature, for their validity, shall be signed by His Majesty and the Kuhina Nui; all his other official acts shall be approved by the Privy Council, countersigned by the Kuhina Nui, and by the Minister to whose Department such act may belong.

Art. 36. The King is Sovereign of all the Chiefs and of all the People; the Kingdom is His.

Art. 37. All titles of honor, orders, and other distinctions emanate from the King.

Art. 38. The King coins money and regulates the currency by law.

Art. 39. The King, by and with the approval of His Cabinet and Privy Council, in a case of invasion or rebellion, can place the whole Kingdom, or any part of it under martial law; and he can even alienate it, if indispensable to free it from the insult and oppression of any foreign power.

Art. 40. The King’s Standard and the National Ensign are maintained as now established.

Art. 41. The King’s private lands and other property are inviolable.

Art. 42. The King cannot be sued or held to account in any court or tribunal of the Realm.

Section II.
Of the Kuhina Nui.

Art. 43. The King appoints some chief of rank and ability to be his Kuhina Nui, who shall be styled the Kuhina Nui of the Hawaiian Islands, and whose title shall be Highness.

Art. 44. The Kuhina Nui shall be the King’s special Counsellor in the great affairs of the Kingdom. All business connected with the special interests of the Kingdom, which the King wishes to transact, shall be done by the Kuhina Nui under the authority of the King. All Acts, Royal Patents, Commissions, and other official documents, duly executed by the Kuhina Nui in the name and by the consent of the King, agreeably with article 35, unless specially excepted by law, shall be equally binding as if executed by the King himself.

Art. 45. All important business of the Kingdom which the King chooses to transact in person, he may do, but not without the approbation of the Kuhina Nui. The King and Kuhina Nui shall have a negative on each others public acts.

Art. 46. The Kuhina Nui shall have charge of the Great Seal of the Kingdom, of the Royal Standard, and of the National Flag; and in the absence of the King, he shall preside over the deliberations of the Privy Council.

Art. 47. Whenever the throne shall become vacant by reason of the King’s death, or otherwise, and during the minority of any heir to the throne, the Kuhina Nui, for the time being, shall, during such vacancy or minority, perform all the duties incumbent on the King, and shall have and exercise all the powers, which by this Constitution are vested in the King.

Art. 48. Whenever during the vacancy of the throne, or the minority of any heir to it, the office of Kuhina Nui shall become vacant by death, resignation, or otherwise, then the Privy Council, or the major part of them, shall during each vacancy, have full power and authority to do, and execute all and every such acts, matters, and things, as the King or the Kuhina Nui might or could, by virtue of this Constitution, do or execute. And in such case, the Privy Council, immediately after the occuring of such vacancy, shall cause a meeting of both Houses of the Legislature, who shall elect by joint ballot a person to fill the office of Kubina Nui.

Section III. Of the Privy Council.

Art. 49. There shall continue to be a Council of State for advising the King in the Executive part of the Government, and in directing the affairs of the Kingdom, according to the Constitution and laws of the land, to be called the King’s Privy Council of State.

Art. 50. The members of the Privy Council are appointed by the King, and hold their offices during His Majesty’s pleasure. The King’s Ministers and the Governors of the Islands are, ex-officio, members of His Privy Council. The Privy Council regulates its own proceedings by Bye-laws enacted by themselves and approved by the King.

Section IV. Of the King’s Ministers.

Art. 51. The Ministers of the King are appointed and commissioned by Him, and hold their offices during His Majesty’s pleasure, subject to impeachment.

Art. 52. The King’s Ministers constitute his Cabinet Council, and, as such, are his special advisers in the Executive affairs of the Kingdom.

Art. 53. Each of them shall keep an office at the seat of Government, be accountable for the conduct of his deputies and clerks; and grant information, so far as may consist with the King’s honor and the good of the public service, to either House of the Legislature, or by a deputy, as such house shall determine.

Art. 54. Each of them shall make an annual report to the Legislature, made up to the first of January next preceding, of the transactions and business of his Department, within one week after the opening of the Legislature.

Art. 55. The King’s Ministers hold seats in the House of Nobles; and they have the right to be heard in the House of Representatives, when accused of mal-administration in office.

Section V. Of the Governors.

Art. 56. The King, by and with the advice of His Privy Council appoints and commissions the Governors of His several Islands; the Governors hold office for the term of four years, subject to impeachment.

Art. 57. The King with the consent of the Governor, may appoint in one or more islands, a Lieutenant Governor, during His pleasure, to assist the Governor but always subordinate to him in authority.

Art. 58. The Governors, in case of sickness, or unavoidable absence, in all cases where no Lieutenant Governor has been appointed, have power to appoint substitutes, for all whose official acts they are responsible.

Art. 59. The Governors, subject to the King shall have the executive control of their respective Islands, agreeably with the Constitution and laws of the land; and they shall have the command of the military forces of their respective Islands, and shall make an annual report of the administration of their respective Islands to the Minister of the Interior.

Of the Legislative Power.

Art. 60. The Legislative Power of this Kingdom is vested in the King, the House of Nobles and the House of Representatives; each of whom has a negative on the other.

Art. 61. The Legislative Body shall assemble annually, for the purpose of seeking the welfare of the nation, in the first week in April, and at such other time, and in the place that the King may judge necessary. This Body shall be styled the Legislature of the Hawaiian Islands.

Art. 62. Full power and authority are hereby given to said Legislature, from time to time, to make all manner of wholesome laws, either with penalties or without, as they shall judge to be for the welfare of the nation, and for the necessary support and defense of good government; provided the same be not repugnant or contrary to this Constitution.

Art. 63. No bill or resolution, although it may have passed the Legislature shall become a law, or have force as such, until it shall have been presented to the King, through the Kuhina Nui, for his revisal and if he approve thereof, he shall signify his approbation by signing the same. But if he have any objection to the passing of such bill or resolve, he shall return it with his objections in writing to that House in which it shall have originated, who shall enter the objections at large on their journal, and no such bill shall be brought forward thereafter during the same session.

Art. 64. Each House shall be the judge of the qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide.

Art. 65. Each House shall choose its own officers, and determine the rules of its own proceedings.

Art. 66. Each House shall have authority to punish by imprisonment, not exceeding thirty days, every person, not a member, who shall be guilty of disrespect to the House, by any disorderly or contemptuous behavior in its presence; or who during the time of its sitting, shall threaten harm to the body or estate of any of its members, for any thing said or done in the House, or who shall assault any of them therefor, or who shall assault or arrest any witness, or other person ordered to attend the House, in his way going or returning; or who shall rescue any person arrested by the order of the House.

Art. 67. Each House may punish its own members for disorderly behavior.

Art. 68. Each House shall keep a journal of its proceedings, and the yeas and nays of the members of either House, on any question, shall, at the desire of one fifth of those present, be entered on the journal.

Art. 69. The members of either House shall in all cases, except treason, felony or breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and they shall not be held to answer for any speech, or debate made in the House, in any other court or place whatsoever.

Art. 70. The Members of the House of Representatives shall receive, for their services a compensation to be ascertained by law and paid out of the public treasury, but no increase of compensation shall take effect during the year in which it shall have been made; and no law shall be passed, increasing the compensation of said members beyond the sum of three dollars per day.

Art. 71. The members of the House of Nobles sit without pay; but they may receive hereafter such a compensation as the law may enact.

Of the House of Nobles.

Art. 72. The King appoints the members of the House of Nobles who hold their seats during life, subject to the provision of article 67; but their number shall not exceed thirty.

Art. 73. No person shall be eligible to a seat in the House of Nobles, who shall not have attained to the age of twenty-one years and resided in the Kingdom five years.

Art. 74. The House of Nobles shall be a Court with full and sole authority to hear and determine all impeachments made by the House of Representatives, against any officer or officers of the Kingdom, for mis-conduct and mal-administration in their offices; but previous to the trial of every impeachment, the members shall respectively be sworn, truly and impartially to try and determine the charge in question, according to evidence and the law. Their judgment, however, shall not extend further than to removal from office and disqualification to hold or enjoy any place of honor, trust, or profit, under this government; but the party, so convicted, shall be, nevertheless, liable to indictment, trial, judgment, and punishment, according to the laws of the land.

Of the House of Representatives.

Art. 75. The House of Representatives shall be composed of not less than twenty-four nor more than forty members, who shall be elected annually.

Art. 76. The Representation of the people shall be based on the principle of equality, and shall be forever regulated and apportioned according to the population, to be ascertained by the official census. In the year one thousand eight hundred and fifty-three, and every sixth year thereafter, the number of Representatives shall be fixed by the Legislature agreeably with this and the preceding article.

Art. 77. No person shall be eligible for a Representative of the people, who is insane, or an idiot, or who shall at any time have been convicted of any infamous crime, nor unless he be a male subject or denizen of the Kingdom, who shall have arrived at the full age of twenty-five years, who shall know how to read and write, who shall understand accounts and who shall have resided in the Kingdom for at least one year immediately preceding his election.

Art. 78. Every male subject of His Majesty, whether native or naturalized, and every denizen of the Kingdom, who shall have paid his taxes, who shall have attained the full age of twenty years, and who shall have resided in the Kingdom for one year immediately preceding the time of election, shall be entitled to one vote for the representative, or representatives, of the district in which he may have resided three months next preceding the day of election; provided that no insane person, nor any person who shall at any time have been convicted of any infamous crime, within this Kingdom, unless he shall have been pardoned by the King, and by the terms of such pardon been restored to all the rights of a subject, shall be allowed to vote.

Art. 79. All bills or resolves for raising revenue, or calling for any expenditure of the public money, shall originate in the House of Representatives; but the House of Nobles may propose or concur with amendments as on other bills.

Art. 80. The House of Representatives shall be the grand inquest of the Kingdom; and all impeachments made by them shall be heard and tried by the House of Nobles.

Of the Judiciary.

Art. 81. The Judicial Power of the Kingdom shall be vested in one Supreme Court, and in such inferior courts as the Legislature may, from time to time establish.

Art. 82. The Supreme Court shall consist of a Chief Justice and two associate Justices, any of whom may hold the court. The Justices of the Supreme Court shall hold their offices during good behavior, subject to removal upon impeachment; and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. Provided, however, that any judge of the Supreme court, or of any other Court of Record, may be removed from office for mental or physical inability by a concurrent resolution of two-thirds of both branches of the Legislature. The judge, against whom the Legislature may be about to proceed, shall receive notice thereof, accompanied by a copy of the causes alledged for his removal, at least twenty days before the day on which either branch of the Legislature shall act thereon.

Art. 83. The Kingdom shall be divided, by law, into a convenient number of circuits, not less than four, nor exceeding eight, subject to alteration by the Legislature, from time to time, as the public good may require; for each of which one or more Circuit Judges, not exceeding three, however, shall be appointed to hold their offices during good behavior, subject to removal upon impeachment.

Art. 84. The judicial power shall extend to all cases, in Law and Equity, arising under the Constitution, any law of this Kingdom, and treaties made, or which shall be made under their authority; to all cases affecting Ambassadors, other public ministers and Consuls, and to all cases of Admiralty and maratime jurisdiction.

Art. 85. The Judicial power shall be divided among the Supreme Court and the several inferior courts of the Kingdom, in such manner as the Legislature may from time to time indicate.

Art. 86. The Chief Justice of the Supreme Court shall be the Chancellor of the Kingdom; he shall be ex-officio President of the House of Nobles in all cases of impeachment, unless when impeached himself; and exercise such jurisdiction in equity or other cases as the law may confer upon him, his decisions being subject, however, to the revision of the Supreme Court, on appeal.

Art. 87. The decisions of the Supreme Court, when made by a majority of the Justices thereof, shall be final and conclusive upon all parties.

Art. 88. The King, His Ministers, the Governors, and each branch of the Legislature shall have authority to require the opinions of the Justices of the Supreme Court, upon important questions of law, and upon solemn occasions.

Art. 89. The King, by and with the advice of His Privy Council, appoints the Justices of the Supreme Court, and all other Judges of Courts of Record; their salaries are fixed law.

Art. 90. The Governors, by and with the advice of the Justices of the Supreme Court, shall appoint the District Justices of their respective islands.

Art. 91. In order that the people may not suffer from long continuance in place of any district Justice, who shall fail of discharging the important duties of his office with ability and fidelity, all commissions of district justices shall expire and become void in the term of two years from their respective dates; and upon the expiration of any commission the same shall be renewed, or another person appointed, as shall most conduce to the well-being of the Kingdom. Provided always, that district Justices shall be subject to removal at any time by the Circuit Court of their respective islands, for causes particularly assigned by the Judges of said Court in rendering their judgment. But no district Justice shall be removed until he shall have notice of the charges made against him and an opportunity of being heard in his defense.

Art. 92. No Judge or Magistrate can sit alone on an appeal or new trial, in any case on which he may have given a previous judgment.

Art. 93. It shall be the duty of the Chief Justice to make an annual report, through the Minister of the Interior, to the Legislature of the state of the Judiciary of the Kingdom in all its branches.

Of Oaths.

Art. 94. The King, after approving this Constitution, shall take the following oath:

I solemnly swear, in the presence of Almighty God, to maintain the Constitution of the Kingdom whole and inviolate, and to govern in conformity with that and the laws.

Art. 95. The Kuhina Nui shall take the same oath; and when exercising the Executive Power, during a minority, he shall take the following oath:

I solemnly swear, in the presence of Almighty God, to preserve the rights of the Heir to the Crown, and the Constitution whole and inviolate, and to govern in conformity with that and the law.

Art. 96. Every member of the House of Nobles shall take the following oath:

I most solemnly swear, in the presence of Almighty God, that I will loyally support the Constitution and Laws of the Hawaiian Islands, and conscientiously and impartially discharge my duty as a member of this House.

Art. 97. Every member of the House of Representatives shall take the following oath:

I most solemnly swear in the presence of Almighty God, that I will faithfully support the Constitution and Laws of the Hawaiian Islands and conscientiously and impartially discharge my duties, as a Representative of the people.

General Provisions.

Art. 98. No person shall ever hold a seat in the Legislature, or any office of honor, trust, or profit under the Government of the Hawaiian Islands, who shall in due course of law, have been convicted of theft, bribery perjury, forgery, embezzlement, or other high crime or misdemeanor.

Art. 99. No officer of this Government shall hold any office, or receive any pension or salary, from any other government or power whatever.

Art. 100. The Legislature votes the appropriations for the year, after due consideration of the revenue and expenditure of the year preceding, and of the estimates of the revenue and expenditure for the current year, which shall be submitted to them by the Minister of Finance; all which accounts shall be appended to the Bill of Appropriations and published annually.

Art. 101. The enacting style in making and passing all Acts and Laws, shall be: “Be it enacted by the King, the Nobles and Representatives of the Hawaiian Islands in Legislative Council assembled.”

Art. 102. To avoid improper influences which may result from intermixing in one and the same Act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.

Art. 103. All laws now in force in this Kingdom, shall continue and remain in full effect, until altered or repealed by the Legislature; such parts only excepted as are repugnant to this Constitution. All laws now enacted, or that may hereafter be enacted, contrary to this Constitution, shall be null and void.

Art. 104. This Constitution shall be in force from the first Monday of December in the year one thousand eight hundred and fifty-two; but that there may be no failure of justice, or danger to the Kingdom, from any change, all officers of this Kingdom, at the time this Constitution shall take effect, shall have, hold, and exercise all the powers to them granted, until other persons shall be appointed in their stead; and all courts of law shall proceed in the execution of the business of their respective departments; and all executive and legislative officers, bodies and powers, shall continue in full force, in the enjoyment and exercise of their trusts, employments and authority, until new appointments or elections shall take place under this Constitution.

Mode of Amending the Constitution.

Art. 105. Any amendment or amendments to this constitution may be proposed in either branch of the legislature, and if the same shall be agreed to by a majority of the members of each house, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and referred to the next legislature; which proposed amendment or amendments, shall be published for three months previous to the election of the next house of representatives; and if, in the next legislature, such proposed amendment or amendments, shall be agreed to by two-thirds of all the members of each house, and be approved by the King, such amendment or amendments shall become part of the Constitution of this Kingdom.

Kamehameha.

Keoni Ana.