In 1850, as a part of a larger program of Western-influenced legal reform, the independent Kingdom of Hawai'i passed a contract labor statute adapted from existing U.S. state laws to meet the perceived need for a reliable plantation labor force. For the next five decades, this statute--the Masters and Servants Act--served as the legal foundation for Hawai'i's rapidly expanding sugar industry, facilitating the arrival of roughly 150,000 immigrants throughout the second half of the nineteenth century.
Within the field of comparative law, the study of legal transplants--legal rules borrowed from one nation and adopted in another--has operated under the assumption that the transfer of those rules necessarily brings the two legal systems closer together. The case study developed in this Note suggests that convergence is not the only possible result: as it turns out, the Masters and Servants Act actually drove divergence between the U.S. and Hawaiian legal systems and conflict between the two nations' governments.
The Act incorporated legal rules that had already become obsolete in their place of origin, and it helped create a plantation labor system that was soon decried by U.S. critics as closely resembling slavery. When Hawai'i was annexed by the United States at the end of the century, repeal of the Masters and Servants Act was among the top U.S. priorities. Considering the Masters and Servants Act, and the legal regime it engendered, through the lens of legal transplantation thus provides an opportunity to rethink how legal transplants work--and what it means for a transplant to be successful
I. LEGAL TRANSPLANTS AS COMPARATIVE LAW II. HAWAI'I'S MASTERS AND SERVANTS ACT A. The Beginnings of the Sugar Industry B. Drafting the Act 1. A Period of Sweeping Legal Change 2. The Act and Its U.S. Origins 3. English and Colonial American Antecedents III. THE CONTRACT LABOR SYSTEM A. General Trends B. Interpretation and Enforcement C. Domestic Resistance and U.S. Criticism CONCLUSION
In the latter half of the nineteenth century, hundreds of thousands of people emigrated to Hawai'i, British Guiana, Fiji, Mauritius, South Africa, and other sugar producing locales to work on sugar plantations. These migrants, mostly from South and East Asia, served as replacements for emancipated slaves or as supplements to indigenous populations unable or unwilling to meet the growing demands of the plantations. (1) By and large, these immigrants were governed by labor contracts that bound them to their employer for a fixed term of service, and were enforceable through penal sanctions. (2) In sugar cane fields throughout the tropics, free wage labor was the exception, not the rule. (3)
The independent Kingdom of Hawai'i (4) occupied a unique position within this worldwide system of contract labor. In 1850, as a part of a larger program of Western-influenced legal reform, the Hawaiian legislature passed a contract labor statute adapted from existing U.S. state laws in order to meet the perceived need for a reliable plantation labor force. For the next five decades, this statute---the Masters and Servants Act--served as the legal foundation for Hawai'i's rapidly expanding plantation labor system. The law remained in force until 1900, when it was overturned as one of the explicit conditions of Hawai'i's full integration as a U.S. territory.
Read in light of the comparative law scholarship on legal transplants, the fifty-year history of the Masters and Servants Act calls into question one of the major assumptions about how such transplants work: namely, that borrowing is invariably a source of legal convergence. Rather, as this Note demonstrates, legal transplants can actually result in conflict between the source nation and the adopting nation.
I. LEGAL TRANSPLANTS AS COMPARATIVE LAW
The legal historian Alan Watson has long argued that the study of legal transplants--the transmission of legal rules from one society to another--should lie at the center of comparative legal scholarship. Watson's influential theory asserts that legal transplants are not only extremely common, but in fact represent the most important source of legal development throughout the world. (5) Against what he calls the "Volksgeist theory of law," (6) Watson holds that the content of a nation's legal system is not an expression of that society's unique character. Rather, legal systems are shaped by transplants, whose movements are often determined by "nonlegal historico-political factors ... what a plain lawyer might call sheer chance." (7) Given the importance of transplants to legal change, Watson promotes the notion that comparative law should include not just study of foreign laws, but rather "the study of the influences that have actually taken place between one set of legal rules and another." (8) As a result, he believes, "comparative law must be in large measure a historical discipline." (9)
In Watson's view, legal transplants are frequent not just between similarly advanced societies, but also occur between nations separated in time and stages of legal development. In the paradigmatic model, developing nations seeking to modernize borrow legal rules from more legally "advanced" countries. (10) In the late nineteenth century, for example, Japan modeled its penal and civil codes after French law, and later reforms to its civil code drew heavily from German contract and property law. (11) Twentieth-century examples of successful borrowing by modernizing nations, according to Watson, include the Swiss-inspired civil code of Turkey and the adoption by Ethiopia of a code heavily inspired by that of France. (12)
Watson's concept of legal transplants has spawned a large volume of research, but despite his call for historical work, most case studies of legal transplants are concerned with recent or ongoing law reform efforts. Examples of frequently debated topics in the literature include the adoption of Western laws in post-Communist Eastern Europe, (13) the potential convergence of common law and civil law systems, (14) the role of transplant-led legal reform in contemporary economic development, (15) and the adoption of international women's rights and human rights laws. (16) TO be sure, there have been a few excellent historical studies of legal transplants, including some focused on the diffusion of laws governing slavery, indentured servitude, and contract labor. (17) But even those efforts have failed to address legal transplants that survived in the country of adoption after they had fallen out of favor in the source country--or that were already obsolete in the source country when transplanted.
As a result, the study of legal transplants has operated under the unspoken assumption that the transfer of legal rules from one country to another necessarily brings those two legal systems, and their legal cultures, closer together. Watson's statement that something can always be borrowed from a "highly developed system" (18) is symptomatic of the near universal belief that law reformers always borrow the most "developed" aspects of the source nation's legal system, and that the process of borrowing inevitably drives legal convergence. Typical is the recent debate about the alleged "Americanization" of other nations' legal systems through legal transplantation, which Daphne Barak-Erez and Jayna Kothari describe as the "hegemonic mode of legal transplantation today." (19) There, the underlying assumption is that the adoption of U.S.-inspired laws throughout the world necessarily makes those legal systems more like that of the United States, and that legal reformers in developing countries seek to adopt the most advanced aspects of U.S. law, rather than its obscure, obsolete remnants.
This blindness to the prospect of transplant-induced legal divergence relates to a larger problem within the legal transplants literature: one-dimensional notions about what it means for a transplant to be successful. Alan Watson's views have been sharply criticized as, for example, insufficiently attentive to the role of national political institutions. (20) But even those critics agree with Watson that it is simple to evaluate the fate of a given legal transplant: one need only look at how long it remains on the books. Similarly, other scholars writing on legal transplants tend to assume that the more firmly such laws take root in the new country, the more successful they are. (21) Consequently, they fail to consider the possibility of post-transplant legal and political conflict between the source nation and the adopting nation that might call into question the success of the transfer.
This Note seeks to challenge these assumptions through a case study of one of the earliest instances of legal "Americanization": the adoption of U.S.-inspired contract labor laws in nineteenth-century Hawai'i. While it was successful in meeting local needs, at least in the short term, this transplant failed to bring the two nations' legal systems closer together. Adapted from New York and New England state laws governing apprentices and contract laborers, Hawai'i's Masters and Servants Act incorporated legal rules that had already fallen into desuetude in their place of origin, and the Act helped create a plantation labor system that was soon decried by U.S. critics as closely resembling slavery. Considering the Masters and Servants Act, and the legal regime it engendered, through the lens of legal transplantation thus provides an opportunity to rethink how legal transplants work--and further, what it means for a transplant to be successful.
Part II of this Note explores the origins of the Masters and Servants Act, explaining how and why the transplant occurred. Part III addresses the interpretation and enforcement of the Act as well as the criticism it engendered-both domestic and foreign. These two sections draw on the Act and its likely U.S. sources, opinions from labor-related cases heard by the Hawai'i Supreme Court, and late nineteenth-century government reports on judicial activity, as well as a range of secondary sources. I conclude with an appraisal of the Masters and Servants Act as a legal transplant.
II. HAWAI'I'S MASTERS AND SERVANTS ACT
A. The Beginnings of the Sugar Industry
Hawai'i's first sugar plantation was founded on the island of Kaua'i in 1835. Along with land and water rights, the U.S. firm financing the plantation received the fight to hire Hawaiian laborers, who were released from their traditional obligations to pay annual agricultural and labor taxes to the indigenous chiefly class. (22) Although this first plantation soon faltered, it was, in the words of Hawai'i's foremost labor historian, a "forerunner of the commercial-industrial agriculture that would ultimately dominate Hawai'i." (23) In the 1840s, the growing markets of the western United States--particularly following the California Gold Rush--led to a dramatic increase in investment in Hawaiian sugar plantations. (24) Hawai'i's rich volcanic soil, ample rainfall, and warm climate made it an ideal place for growing sugar, with a yield per acre three to four times greater than other sugar producing regions. (25)
However, the would-be sugar planters, many of them U.S.-born exmissionaries or the descendants of those missionaries, faced a serious shortage of available labor. Western-introduced diseases had decimated the indigenous population, and those Hawaiians who survived were, in the view of the planters, idlers unwilling to work for anything but "exorbitant" wages. (26) Thus, at the very moment when the Hawaiian rulers and their white allies became interested in adopting a plantation-oriented market economy, "the labor which would make such a shift feasible seemed to be on the point of disappearing--either through a high mortality rate or an inclination to seek employment in other pursuits." (27) In 1846, the government criminalized "indolence," to little effect. (28) Additional statutes prohibited Hawaiians from leaving the islands without permission and explicitly forbade them from signing on as seamen on whaling ships. (29) Yet the so-called "labor problem" persisted.
By 1850, both the Hawaiian elite and the white sugar planters recognized that the solution to the labor problem could not come from within the kingdom. King Kamehameha III, speaking at the opening of the 1850 legislative session, stressed the need for "a greatly increased cultivation of the soil, which will not be possible without the aid of foreign capital and labor." (30) That same year, white planters founded the Royal Hawaiian Agricultural Society. Among the organization's aims was to promote the "introduction of Coolie labor from China to supply the places of the rapidly decreasing native population." (31) Indeed, at its first meeting, the Society's members discussed importing workers from abroad. Though they preferred Northern Europeans--particularly Germans--"the introduction of Chinese, to a limited extent ... was not regarded with disfavor." (32) They also appear to have recognized that some form of contract labor system would be necessary. One attendee at the meeting claimed that "no tropical product has ever been grown to any extent, by free labor." (33)
B. Drafting the Act
1. A Period of Sweeping Legal Change
This period of Hawaiian history was marked by dramatic legal change. In the late 1840s and early 1850s, Kamehameha III's government adopted a large body of Western-influenced statutory and constitutional law.34 Most controversial at the time was the land reform known today as the Great Mghele, which introduced Western-style ownership of land. (35) Another series of laws reorganized the structure of the Hawaiian government. The 1852 Constitution, for example, clarified the separation of powers between the king, as a constitutional monarch, and the bicameral legislature. It also created a single Hawai'i Supreme Court composed of three justices to replace the previously separate English-language and Hawaiian-language appeals courts. (36)
In adopting this slate of legal reforms, Kamehameha III relied heavily on U.S.-born advisors, of which the two most influential were John Ricord and William Little Lee. Ricord, who had previously served as attorney general of Texas, (37) became Kamehameha III's attorney general in 1844 and held that post until his departure from the islands in 1847. (38) The New York-born Lee, a graduate of Harvard Law School, arrived in Hawai'i in 1846 at age twenty-five and soon became a major architect of the kingdom's legal reforms.39 Among his many other prominent roles, Lee served on the Land Commission overseeing the Mahele, wrote the 1850 penal code, and served as Chief Justice of the Hawai'i Supreme Court from 1852 until his death in 1857. (40)
Ricord and Lee saw themselves as maintaining a balance between addressing Hawai'i's unique legal needs and adopting Western-influenced laws. According to Samuel Kamakau, a Native Hawaiian jurist of the same era, Ricord believed that "the laws of Rome could not be used for Hawai'i, nor those of England, but that the Hawaiian people must have laws adapted to their mode of living." (41) Yet if Ricord believed that Hawai'i's laws needed to be adapted to the nation's unique circumstances, he also understood that for the sake of international legitimacy they needed to become more like the laws of the Western world. In explaining to the king's legislative council the need for a greater body of substantive law, Ricord explained that Hawai'i's continued recognition by foreign powers as a member of the "family of nations" required that its laws be "perfect[ed] and extend[ed] so as to render them comparable with the laws of other civilized states." (42)
2. The Act and Its U.S. Origins
The Masters and Servants Act turned out to be the legal solution to the sugar planters' labor problem. Enacted in 1850 as part of Hawai'i's larger set of legal reforms, the Act's language was borrowed from U.S. state laws, with a few key adaptations for local conditions. The extant legislative history of the Act is minimal; by all accounts, it was drafted and passed without a great deal of discussion.(43) William Little Lee, who by 1850 was the king's principal legal advisor as well as a founding member of the Royal Hawaiian Agricultural Society, authored the law. (44) On April 29, 1850, at an early meeting of the nascent Society, Lee announced that he had drafted "an Act for the mutual protection of masters and servants, which he proposed to place in the hands of the present Legislature." (45) Lee read the bill at the Society meeting and solicited comments, but the group quickly moved to approve it, apparently without commentary or criticism.(46) He then introduced the bill to the legislature on June 21, 1850, and it passed the same day.(47) Historian Ralph Kuykendall writes that "the law was enacted in an almost casual manner," with no debate in the legislature or the press.(48)
In drafting the law, Lee almost certainly drew from U.S. sources. Katherine Coman, writing immediately after the end of the contract labor system, noted that the apprenticeship portion of the Act--which allows minors to bind themselves to masters--closely resembled that of Massachusetts, (49) and more recent scholars have accepted her view that the language was borrowed from that state's statute. (50) This assessment is likely correct: While there are some minor differences in content between the Massachusetts apprenticeship law and Hawai'i's Masters and Servants Act, the language of the comparable sections of the two statutes is nearly identical. (51)
The source of the Act's contract labor component, which allowed adults to bind themselves to employers for a set period of time, is more obscure. While it seems certain that it was adapted from U.S. state laws, the contract labor provision's precise origin has been the matter of much debate. Katherine Coman claims that the Act's contract labor provisions were an "adaptation of American shipping law," perhaps inspired by the active recruitment of Hawaiians into the whaling trade at that time, (52) and her view was adopted by Ralph Kuykendall in his canonical survey of nineteenth-century Hawaiian history. (53) She also noted the Act's similarity to the colonial laws of Virginia. (54) Coman made no reference, however, to primary sources that might provide stronger support for her views. The labor historian Walter Beechert has disputed Coman's view, arguing instead that the statute's contract labor provisions were drawn from an 1846 New York statute, of which he claims the native New Yorker Lee would have been aware. (55) His evidence is more substantial than Coman's, but still circumstantial: a letter to the editor of a Honolulu newspaper in the 1880s which claimed that the Act was a modification of New York law, (56) and letters from William Richards, another U.S.born legal adviser in Hawai'i, requesting that copies of New York's statutes be sent to Honolulu. (57) The anthropologist Sally Engle Merry, for her part, does not attempt to disprove Beechert's theory, but notes that the contract labor provisions of the act bear an even greater resemblance to Connecticut's master-servant law at the time. (58)
A comparison of the Act with analogous New York, Massachusetts, and Connecticut laws lends support to the notion that Lee was inspired by U.S. state laws. (59) Many of the Act's provisions feature language similar or identical to these statutes, primarily but not exclusively New York's apprenticeship statute. For example, the Act provides for "double the time of his absence" to be added onto the contract terms of both minors and adults who desert their service, not to exceed one year beyond the original term of service.(60) New York's apprenticeship statute includes strikingly similar language and an even harsher maximum penalty. (61) In Hawai'i, adult contract laborers who resisted their masters could be put in prison, where the worker was to "remain at hard labor until he will consent to serve according to law." (62) New York statute's provided for the same remedy, as well as an additional option of solitary confinement in jail for a period of up to one month. (63) The remedies for minors who resisted authority, however, tracked Massachusetts's practice of allowing a local judge to determine the minor's punishment. (64)
Lee's most relevant published statement about his legal sources-apparently overlooked by previous scholars--similarly fails to provide conclusive proof of the Act's sources. The Masters and Servants Act was published in 1850 as part of the government's new, comprehensive penal code, the other elements of which were also written by Lee. (65) These other provisions borrowed heavily from Louisiana law as well as a proposed penal code from Massachusetts. (66) Like John Ricord, Lee sought to create laws that would both suit Hawai'i's particular needs and bring the nation in line, as much as possible, with the laws of the Western world. In his introduction to the penal code, Lee notes his debt to Louisiana and Massachusetts laws, and describes his struggle to create a body of law that would be appropriate for the "chrysalis state of the nation." (67) According to Lee, his challenge was to devise a unitary penal code that could be applied both to foreigners and Hawaiians---one that would meet the needs of the former but would not be "too refined for the limited mind" of the latter.(68) As he writes,
[W]hile I have studied, as far as is consonant with justice, to conform to the ancient laws and usages of the kingdom, I have in the main, adopted the principles of the English common law, as the foundation of a code best adopted to the present and approaching wants and condition of the nation. (69)
As discussed below, subsequent interpretations of the Act by the Hawai'i Supreme Court--on which Lee himself served--do not provide conclusive answers either: In its decisions, the Court drew on a mix of case law from New York, various New England states, and the U.S. Supreme Court. Ultimately, it seems most likely that Lee was chiefly inspired by the New York statute, with some provisions drawn from the laws of other states.
And, of course, Lee added a fair amount of new material on his own. Indeed, it is important to note two of the most striking differences between the Masters and Servants Act and its likely U.S. sources: that it provided for adult contract laborers, not just minors serving as apprentices, (70) and that adult laborers who signed their contracts abroad could be bound for a period of up to ten years. (71) Thus, while significant parts of the Act were wholesale transplants, two of its most important features went beyond the U.S. laws to provide the legal framework suited to what Lee perceived as the needs of the "chrysalis state" of the Hawaiian kingdom.
3. English and Colonial American Antecedents
The American statutes upon which Lee likely drew were themselves derived from earlier English laws. Indentured servitude in the American colonies, David Galenson writes, "provided a link between English labor supply and colonial demand," with the servant in essence receiving a loan for his passage across the Atlantic, borrowed against his future earnings under the contract. (72) Alan Watson notes that English statutes, particularly the 1563 Statute of Artificers, significantly influenced colonial apprenticeship and employment laws, even in places like Massachusetts where early colonists sought to devise distinctive legal codes. (73)
Yet the colonies, according to Christopher Tomlins, did not "[reproduce] a uniform metropolitan model." (74) In part this was due to economic, social, and cultural variations within colonial America. One unifying feature of labor laws in the colonies was that severe labor shortages, combined with average contract terms longer than those in England, necessitated the development of legal mechanisms to prevent and punish desertion. (75) But in Massachusetts, where bound labor consisted primarily of young apprentices drawn from within local communities, laws were "substantially freer of detailed statutory discipline" than English laws, (76) in contrast to the far harsher regime in place in Virginia, which relied more heavily on indentured servants from England.(77) For example, while Massachusetts did provide for the arrest and return of runaway servants to their masters, it did not adopt statutory additions to the runaway's contract term--as was the case in England and the Chesapeake region--leaving those determinations in the hands of individual judges. (78)
One of the most intriguing features of Hawai'i's adoption of Westerninfluenced labor law is that its Masters and Servants Act was inspired by laws enabling labor practices that were no longer prevalent in those states in 1850. As Galenson notes, what he calls "white servitude" was never a major factor in New England and the Middle Colonies,(79) and at any rate, by the late eighteenth century "the indenture system had ceased to be quantitatively important in any part of British America." (80) Thus, even as it was transplanting apprenticeship laws from the U.S., as a practical matter Hawai'i's labor regime was already out of step with practices in New York and New England.
III. THE CONTRACT LABOR SYSTEM
Of course, there is much more to a legal transplant than the mere publication of a law in the statute books, and this Part explores the contours of the contract labor system that the Act enabled. As the nineteenth century wore on, the tensions engendered by the system became more apparent. Though inspired by U.S. state law, the Act put Hawai'i increasingly in conflict with Anglo-American labor practices--as the system's many critics were quick to point out. While the Hawai'i Supreme Court accepted contract labor as a fair and voluntary arrangement, it was also cognizant that the islands' labor practices were, in its own words, "peculiar."
A. General Trends
From the narrow perspective of solving the "labor problem," the Act was an unambiguous triumph. In 1852, the first group of foreign contract laborers arrived in Hawai'i. These roughly 280 Chinese workers, who contracted for five-year terms pursuant to the Masters and Servants Act, were dispersed among plantations on three islands. (81) Although the planters deemed these Chinese workers satisfactory, declining demand for sugar meant that large-scale importation of contract laborers did not resume until the outbreak of the U.S. Civil War.(82) When it did, it was under the aegis of the government-run Bureau of Immigration, which was created in 1864 to manage the flow of contract laborers. The Bureau held a monopoly on importation of contract laborers, with steep penalties for private parties who recruited workers without the permission of the Board. (83) Overall, however, the use of imported contract laborers prior to 1876 was relatively modest, as was the burden on the courts in managing the system. In 1864, for example, only thirteen workers were tried and convicted of desertion, (84) a figure that contrasts sharply with huge number of desertion cases at the end of the century.
The Reciprocity Treaty of 1876, which gave Hawaiian sugar producers tariff-free access to U.S. markets in return for land surrounding present day Pearl Harbor, transformed the Hawaiian sugar industry. In 1874, two years prior to the adoption of the treaty, there were just over 12,000 acres of sugar cane planted in Hawai'i, producing 12,285 tons of sugar. By 1879, both figures had doubled, and sugar production continued to increase throughout the remainder of the nineteenth century. The importation of contract laborers during this period to meet the rising demands of the plantations dramatically reshaped the ethnic composition of Hawai'i, as the dwindling Native Hawaiian population was eclipsed by migrants from China, Japan, Portugal, and elsewhere. From 1876 to 1896, the population of the islands nearly doubled from 55,000 to 109,020, largely through the importation of contract labor.(85)
In 1900, the year that the United States formally annexed Hawai'i and the contract labor system came to an end, there were 131,250 acres under cultivation, producing nearly 290,000 tons of sugar.(86) Hawai'i had become one of the world's major sugar producers, trailing only Mauritius, Trinidad, and British Guiana among users of contract labor. (87) Notably, it was the only independent nation to make large-scale use of such a labor regime.
B. lnterpretation and Enforcement
In the fifty years following the passage of the Masters and Servants Act, the Hawai'i Supreme Court was frequently asked to interpret the statute. Taken as a whole, the Court's contract labor cases reflect a belief that Hawai'i's plantation labor contracts were a peculiar but fair arrangement that protected the rights of both master and servant. As the Court stated in In re Kakina, an 1878 case in which it refused to sanction a local judge for worker-friendly rulings that angered plantation owners: "The masters and servants statutes are of great service to the industries of the country but it must ever be borne in mind that they are not intended to be an instrument of hardship or oppression."(88) Those who interpreted the law, at least at this level, were almost all whites, many of them U.S.-born and -trained, and their written opinions display a great deal of familiarity with U.S. legal doctrine. Of the seventeen men who served as justices of the Hawai'i Supreme Court from 1852 through 1892, fifteen were white--including William Little Lee, both the drafter of the Act and the first chief justice of the Court--one was Hawaiian, and one was part-Hawaiian. (89)
Hawaii's courts were overwhelmed by contract labor cases in the period following the 1876 Reciprocity Treaty. As early as 1880, the chief justice of the Hawai'i Supreme Court complained of the "swollen business of the district courts" due to the large numbers of cases brought under the Masters and Servants Act. (90) Official reports summarizing judicial activity in the 1890s reveal the extent to which the Hawaiian legal system was devoted to the control of contract laborers. In 1890-91, cases involving "desertion or refusal of bound service" represented just over 61% of all civil cases. (91) In 1892-93, this average rose to roughly 65% of the total civil docket. (92) If one excludes the island of O'ahu, which had fewer plantations per capita than the other islands, the rates rise to 77% in 1892 and 76% in 1893. Though the proportion of contract labor cases dipped somewhat in the mid-1890s, their share of all civil cases remained significant--especially on plantation-heavy islands such as Hawai'i, Maui, and Kaua'i, where they remained above 50%. (93) In some rural plantation districts, the proportion of contract labor desertion cases was well above 90% of all civil cases in some years. (94)
Even after 1877, when labor contract disputes became civil rather than criminal matters, penal sanctions were still invoked to enforce the contracts. Local police served as a sort of auxiliary security force for the plantations, largely by arresting and detaining deserting workers. Between 1880 and 1882, for example, police arrested 3,454 contract laborers for desertion; between 1890 and 1892, the figure was 5,706--which represented approximately one-third of all arrests in the islands during that period. (95) Analyzing police funding appropriations, historian Ronald Takaki found a sharp contrast between Moloka'i--the only major island without any sugar plantations--which received $0.51 per capita for policing, and the sugar-producing islands, which each spent at least $2.00 per capita. (96)
Given this huge volume of contract labor cases, it is unsurprising that the Hawai'i Supreme Court was regularly called upon to interpret the Masters and Servants Act. In doing so, the Court looked to U.S.--and to a lesser degree, English--sources in deciding many of the appeals brought under the Act. In these cases, the Court struggled to present its own jurisprudence as fitting within a civilized Anglo-American legal sphere, while at the same time defending a statute that was, at least after the U.S. Civil War, anathema in both England and the United States.
In the early years of the Act, the Court relied on these sources to bolster broad statements of legal doctrine where no sufficient Hawaiian case law existed. In King v. Greenwell, which concerned the death of a contract laborer who had been whipped by his employer, the Court relied on what it termed the "true rule" regarding cause of death for a victim with a pre-existing injury, "as established in Westminster Hall, Continental Europe and the United States." (97) The opening pages of In re Lewers, an 1867 case, contain quotations from cases in the Massachusetts Supreme Judicial Court, the Supreme Court of the United States, and the New York Court of Chancery, as well as from a treatise written by Justice Story. (98) The Court used these statements regarding conflict of laws in contract cases to support its holding that laborers who signed contracts in China were subject to taxes in Hawai'i. (99)
Even after the case law on labor contracts was sufficiently developed for the Court to cite its own precedent on some issues, the justices still relied on foreign cases and treatises when dealing with novel problems. In 1884, the Court cited cases from Massachusetts, Maine, New York, and the U.S. Supreme Court to support the proposition that "a foreign law, relied upon as a defense, must be proved, like any other fact in the case." (100) Justices penning dissents also used foreign sources to suggest that the majority was departing from established U.S. practices. In his vigorous dissent in J. Nott & Co. v. Kanahele, an 1877 case holding that parties could contract around the statutory ban on transfer of contracts to new masters, Justice Judd cited Massachusetts and New Hampshire cases in claiming that "it has frequently been decided that an apprentice is not assignable." (101)
Despite its frequent invocation of foreign treatises and case law, the Court often expressed awareness that what it termed "our somewhat peculiar labor laws" represented a divergence from Anglo-American labor practices. (102) In an 1870 case declining to address the constitutionality of the Masters and Servants Act, the Court acknowledged that "[n]o such contract of an adult is enforceable by the common law of England or America. (103) Three years later, in considering the rights of a contract laborer whose ship docked in Honolulu en route from Macao to Central America, the Court noted that "[a] Hawaiian employer would not obtain the aid of English and American Courts for the enforcement of a labor contract by our law." (104) Even Justice Judd's dissent in Kanahele, which invoked New England case law, conceded: "We are peculiarly situated. Here capital seeks labor. In the countries where the precedents of the common law are formed labor seeks employment." (105)
In 1891, the Hawai'i Supreme Court in Hilo Sugar Co. v. Mioshi finally addressed a constitutional challenge to the enforcement of a labor contract. After serving part of labor contract term, a Japanese laborer brought suit, claiming that he could not be compelled to perform the remainder of the term because that would constitute "involuntary servitude," as prohibited by Article 11 of the Hawaiian constitution. (106) The Court concluded that because the challenged components of the Masters and Servants Act--the allowance for five-and ten-year terms, enforceable through penal sanctions--had been left in place for forty years despite amendments of other sections of the law, "the legislature ... and the people have given a practical interpretation of the Constitution, that our system of contract labor is not the involuntary servitude forbidden by that instrument." (107) The Court then referenced the U.S. Supreme Court's commentary on the Thirteenth Amendment in the Slaughter-House Cases, which stated that "[i]f Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory," the amendment would render it illegal. (108) Hawai'i's constitution, the Hawai'i Supreme Court concluded, provided similar protections, but the islands' contract labor system simply did not constitute slavery--an ironic claim given that Hawai'i's contract labor system had long been derided for its use of "Chinese coolie labor."
Mioshi's reference to the Slaughter-House Cases represents the high-water mark of the Hawai'i Supreme Court's strange relationship with U.S. legal doctrine. Though the Court frequently invoked foreign cases and commentary to support its holdings in contract labor cases, it also recognized that the system it upheld was a highly "peculiar" one. In its jurisprudence, the Court saw itself as carefully maintaining the balance that Lee envisioned in his introduction to the 1850 penal code: an equilibrium between integration with Anglo-American law and recognition of Hawai'i's unique need for contract labor. But critics of the contract labor system were not as easily convinced.
C. Domestic Resistance and U.S. Criticism
If the Hawai'i Supreme Court was aware of the peculiarity of the kingdom's labor laws, so were critics of the system, both at home and abroad. In 1869, a year in which the contracts of many Chinese plantation workers were set to expire, a series of public debates about the contract labor system took place in Honolulu. Those opposed to the Masters and Servants Act were mostly urban white craftsmen who feared competition from Chinese workers; they were aided by the Pacific Commercial Advertiser, one of Honolulu's major newspapers, which compared the Act's provisions to slavery. (109) This ferment continued into the 1870 legislative session, resulting in the amendment of the Act to provide several minor protections for contract laborers. (110) In the 1870s, some white and Native Hawaiian critics continued to oppose importation of Asian contract laborers, due to concerns about slavery-like conditions as well as fears that "unchaste" Chinese workers would pollute the Hawaiian race through intermarriage. (111)
Plantation workers themselves frequently used violence, work stoppages, and desertion to resist the terms of their contracts. (112) Furthermore, many workers left rural plantations for Honolulu and other towns after their contracts expired; exodus from the plantations became so serious that the government passed laws to prevent Chinese from holding certain non-agricultural jobs. (113) In addition, many workers, enticed by higher wages and freer working conditions in California, left the islands altogether once their contracts were up. (114)
But more strikingly, throughout the course of the nineteenth century the Masters and Servants Act became a point of contention between Hawai'i and the very nation whose laws inspired the statute: the United States. In the eyes of many Americans, Hawai'i's U.S.-inspired law was so divergent from civilized norms that it warranted U.S. action. In 1862, the U.S. Congress passed a law prohibiting Americans on U.S. ships from participating in the "coolie trade," by which it meant carrying Chinese laborers who had bound themselves to labor contracts. However, because "coolie" was not defined with sufficient precision, the law was "practically ineffective." (115) Five years later, Congress adopted a resolution condemning the "coolie trade," stating that the U.S. government had an obligation to oppose "the further introduction of coolies into this hemisphere or the adjacent islands." (116) In reply to the U.S. ambassador, who had inquired about a shipment of Japanese workers held up at the Honolulu port in 1868, the Hawaiian government reiterated its strong stance against involuntary servitude, but argued that Hawai'i's contract labor system was in fact voluntary, necessary, and well-regulated, and thus not part of the so-called "coolie trade." (117)
Despite these concerns, the United States signed the Reciprocity Treaty with Hawai'i in 1876, which spurred rapid growth of the islands' contract labor system. In the first few years following the treaty, contract labor was not a major topic of concern in the United States. (118) By the early 1880s, though, U.S. criticism returned in force. Domestic U.S. sugar producers complained of the preferential treatment given to Hawaiian sugar under the treaty, in part because it was grown under a labor system they claimed "closely resembl[ed] slavery." (119) The San Francisco Chronicle brought widespread attention to the issue in a series of 1881 articles alleging that Hawai'i's contract labor system amounted to "brutal slavery." (120) In 1885, possibly anticipating the future annexation of the islands, Congress made it illegal to pay for the passage of a person to the United States if he was traveling there under the terms of a labor contract. (121)
For some U.S. critics, the problem was not so much the enforcement of contracts under the Masters and Servants Act, but rather the fact that Hawai'i's labor regime had attracted too many Asian workers to the islands. For example, President Chester B. Arthur's 1881 address to Congress mentioned that while the United States' relationship with Hawai'i remained strong, the recruitment of plantation laborers from "outward sources ... may impair the native sovereignty and independence, in which the United States was among the first to testify a lively interest." (122) More to the point, the official U.S. representative in Honolulu wrote to the U.S. Secretary of State in 1892 that annexation might be necessary to stem the "incoming tide of Asiatic laborers" that threatened long-term U.S. interests in the islands. (123)
But one case involving European workers in Hawai'i indicates that foreign approbation was motivated at least in part by genuine outrage at the islands' labor regime. In 1882, a group of 500 Norwegian contract laborers on the island of Hawai'i protested their wages and working conditions by going on strike and writing to newspapers in Norway and the United States. This campaign led to the publication of articles in U.S. and European newspapers condemning Hawai'i's contract labor system, part of "an explosion of unfavorable publicity on the mainland and in Europe" in the early 1880s. (124)
The contract labor system was again a major point of contention during the U.S. annexation of Hawai'i. Though the islands came under U.S. control in 1898, it was not until 1900 that the Organic Act formalized their integration into the union as a territory subject to U.S. laws. Hawaiian sugar planters, aware of the impending end of the contract labor system, used this two-year period to import thousands of workers, mostly from Japan. (125) In response, the U.S. House of Representatives passed a bill in 1899 that would have immediately extended federal labor laws to Hawai'i, but the measure failed in the Senate. (126) When drafting the Organic Act, Congress fiercely debated the contract labor issue, and the Act ultimately included a section explicitly forbidding contract labor in the new Territory of Hawai'i. (127)
Hawai'i's Masters and Servants Act managed to survive for fifty years, periodically amended but fundamentally intact, in a radically different social and political environment from its place of origin. It facilitated the arrival of roughly 150,000 immigrants throughout the second half of the nineteenth century, (128) which replenished Hawai'i's population and increased its economic power. However, in contrast to some of Hawai'i's other Western-influenced laws--such as the laws of property and marriage--it failed to survive annexation by the United States, and in fact was a major point of conflict between Hawai'i and the United States long before U.S. takeover.
The Masters and Servants Act should serve as a potent reminder that it is not always easy to determine whether a legal transplant has been "successful." This is especially so when considering transplants which, far from fueling legal convergence, actually end up bringing the adopting nation into conflict with the source nation. Although the Act was adopted at a time when slavery was still legal in the American South, the U.S. legal advisors who influenced Hawai'i's indigenous ruling class were northerners with strong abolitionist sentiments; they ensured, for example, that the kingdom's constitution expressly forbade outright slavery. (129) But Hawai'i's labor laws created a system that was attacked by both domestic and foreign critics as being akin to involuntary servitude, and its Supreme Court strained to reconcile the contract labor system with other Western-influenced legal values. Furthermore, the Masters and Servants Act was modeled on U.S. state statutes enabling labor practices that were no longer widely practiced in those states at the time of transplantation. In short, the Act was already out of sync with U.S. labor law at the time of its adoption, and it became increasingly so over the second half of the nineteenth century.
While the Masters and Servants Act might appear to some as an unrepresentative outlier, that may be because legal scholars have seldom considered the possibility that legal transplants do not always follow a predictable pattern in which modernizing nations borrow legal rules from more advanced nations in an effort to "catch up" with some linear, unitary process of legal development. Instead, as the history of the Act demonstrates, legal transplants are sometimes the result of opportunistic borrowing that can lead to legal divergence--and even conflict--between the adoptive and source nations. Bearing in mind Watson's assertion that "comparative law must be in large measure a historical discipline," (130) scholars seeking a better understanding of how legal transplants work in practice would do well to look to the past.
(1) Stanley L. Engerman, Contract Labor, Sugar, and Technology in the Nineteenth Century, 43 J. ECON. HIST. 635,642 (1983).
(2) For a wide-ranging treatment of contract labor laws in British colonies, both sugar-producing and otherwise, see generally MASTERS, SERVANTS, AND MAGISTRATES IN BRITAIN AND THE EMPIRE, 1562-1955 (Douglas Hay & Paul Craven eds., 2004) [hereinafter MASTERS, SERVANTS, AND MAGISTRATES].
(3) Engerman, supra note 1, at 640 ("Few wage workers grew sugar throughout the nineteenth century.").
(4) First united by King Kamehameha I in 1810, the Hawaiian islands were ruled as an independent kingdom until a U.S.-baeked coup by white settlers in 1893. The short-lived Republic of Hawai'i lasted until 1898, when Hawai'i became a U.S. territory. See JON VAN DYKE, WHO OWNS THE CROWN LANDS OF HAWAI'I? 1-9 (2008).
(5) ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW 95-96 (1974).
(6) Id. at 51.
(8) William Ewald, Comparative Jurisprudence (II). The Logic of Legal Transplants, 43 AM. J. COMP. L. 489, 497 (1995) (paraphrasing Watson).
(9) Alan Watson, Comparative Law and Legal Change, 37 CAMBRIDGE L.J. 313, 321 (1978).
(10) WATSON, supra note 5, at 55 (writing of the adoption of more "developed" Roman law in medieval Scotland that "something can always be successfully borrowed--and adapted--from a highly developed system by a country even at a different stage of development.").
(11) Erie Stein, Uses, Misuses--And Nonuses of Comparative Law, 72 NW. U. L. REV. 198, 202 03 (1977) (summarizing Watson's work on these examples).
(12) WATSON, supra note 5, at 102.
(13) See Steven J. Heim, Note, Predicting Legal Transplants. The Case of Servitudes in the Russian Federation, 6 TRANSNAT'L L. & CONTEMP. PROBS. 187, 197 202 (1996); Gianmaria Ajani, By Chance and Prestige: Legal Transplants in Russian and Eastern Europe, 43 AM. J. COMP. L. 93, 94-99 (1995).
(14) See Pierre Legrand, European Legal Systems Are Not Converging, 45 INT'L & COMP. L. Q. 52, 52-54 (1996); Jan Smits, On Successful Legal Transplants in a Future Ius Commune Europeaum, in COMPAR ATIVE LAW IN THE 21ST CENTURY 137, 140 (A. Harding & E. Orucu eds. 2002).
(15) See Daniel Berkowitz, Katharina Pistor & Jean-Francois Richard, Economic Development, Legality, andthe Transplant Effect, 47 EUR. ECON. REV. 165, 174 (2001).
(16) See Daphne Barak-Erez & Jayna Kothari, When Sexual Harassment Law Goes East: Feminism, Legal Transplantation, and Social Change, 47 STAN. J. INT'L L. 175, 176-77 (2011); Julie Mertus, From Legal Transplants to Transformative Justice: Human Rights" and the Promise of Transnational Civil Society, 14 AM. U. INT'L L. REV. 1335, 1377-84 (1999).
(17) See, e.g., Christopher Tomlins, Transplants and Timing: Passages in the Creation of an Anglo-American Law of Slavery, 10 THEORETICAL INQ. L. 389 (2009) (applying the "legal transplants" concept to colonial slavery regimes); MASTERS, SERVANTS, AND MAGISTRATES, supra note 2 (collecting results of an ambitious multi-author project on the diffusion of contract labor laws throughout the British empire). But see Douglas Hay & Paul Craven, Introduction, in MASTERS, SERVANTS, AND MAGISTRATES, supra note 2, at 1, 57 (noting that these laws were an "imposition" by Britain on its colonial subjects that "marked a clear assertion of the colonial state's sovereignty"--and thus were not transplants freely adopted by independent, modernizing states).
(18) See supra note 10.
(19) Barak-Erez & Kothari, supra note 16, at 176 & n.6 (collecting law review articles on "Americanization").
(20) Otto Kahn-Freund, On Uses and Misuses of Comparative Law, 37 MOD. L. REV. 1, 13 (1974) (arguing, in the context of U.S. labor law imported to Britain, that the degree to which any rule can be transplanted depends on "how closely it is linked with the foreign power structure"). For a very different critique of Watson, see Pierre Legrand, The Impossibility of 'Legal Transplants", 4 MAASTRICHT J. EURO. & COMP. L. III, 120 (1997) (arguing that "[i]n any meaningful sense of the term, 'legal transplants' ... cannot happen" because law is a reflection of unique and deeply rooted legal cultures, regardless of the formal laws in the code books).
(21) Berkowitz et al., supra note 15, at 174 (defining success in terms of the receiving country's "ability to give meaning to the imported law"); Michal S. Gal, The 'Cut and Paste' of Article 82 of the EC Treaty in Israel: Conditions for a Successful Transplant, 9 EUR. J.L. REF. 467, 472 (2007) (defining it as "the ability of the transplanted law to achieve its goals in the transplanting country"); Hideki Kanda & Curtis J. Milhaupt, Re-Examining Legal Transplants: The Director's Fiduciary Duty in Japanese Corporate Law, 57 AM. J. COMP. L. 887, 890 (2003) (defining success as "use of the imported legal rule in the same way that it is used in the home country, subject to adaptations to local conditions"); Smits, supra note 14, at 140 (defining success in terms of the creation of uniformity between the exporting and importing nations' laws). But see Gunther Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences, 61 MOD. L. REV. 11, 12 (1998) (questioning traditional understandings of success and arguing that Watson's "transplant" metaphor should be replaced by the concept of "legal irritants").
(22) EDWARD D. BEECHERT, WORKING IN HAWAII: A LABOR HISTORY 22 (1985).
(23)Id. at 23.
(24) RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM: 1778-1854: FOUNDATION AND TRANSFORMATION 31%28 (1947).
(25) Katherine Coman, A History of Contract Labor in the Hawaiian Islands, 4 PUBLICATIONS AM. ECON. ASS'N 1, 6 (1903).
(26) BEECHERT, supra note 22, at 38.
(28) Id. at 35-36.
(29) Id. at 37.
(30) KUYKENDALL, supra note 24, at 329 (emphasis added) (internal quotation marks omitted).
(31) 1 TRANSACTIONS OF THE ROYAL HAWAIIAN AGRICULTURAL SOCIETY 1, 8 (1850).
(32) KUYKENDALL, supra note 24, at 329 (quotation marks omitted).
(33) TRANSACTIONS, supra note 31, at 61.
(34) For example, these new laws superseded the Kumu Kanawai, a legal code that incorporated traditional Hawaiian customs as well as biblical principles and some elements drawn from American laws. See SALLY ENGLE MERRY, COLONIZING HAWAI'I: THE CULTURAL POWER OF LAW 79 (2000).
(35) Though obviously important for the history of sugar plantations in Hawai'i, the Mahele is too large and contentious a topic to consider at length here. See generally Stuart Banner, Preparing to Be Colonized: Land Tenure and Legal Strategy in Nineteenth-Century Hawaii, 39 LAW & SOC'Y REV. 278 (2005) (arguing that the land reforms should be viewed as a rational response to the Hawaiian elite's fear of impending colonization).
(36) KUYKENDALL, supra note 24, at 268.
(37) MERRY, supra note 34, at 91.
(38) KUYKENDALL, supra note 24, at 236.
(39) VAN DYKE, supra note 4, at 36-37.
(40) Id. at 38.
(41) MERRY, supra note 34, at 91. Unfortunately, it is unclear whether Merry is paraphrasing or directly quoting Samuel Kamakau.
(42) KUYKENDALL, supra note 24, at 261.
(43) According to Walter Beechert, "no specific legislative report or record of public debate can be found." BEECHERT, supra note 22, at 42. In his view, "it is likely that the years-long discussion of the 'labor question' made unnecessary any specific debate" of the Act. Id.
(44) Id. at 45.
(45) TRANSACTIONS, supra note 31, at 5.
(48) KUYKENDALL, supra note 24, at 330.
(49) Coman, supra note 25, at 8.
(50) See BEECHERT, supra note 22, at 43; MERRY, supra note 34, at 97. See Of Masters, Apprentices, and Servants, MASS. REV. STAT., ch. 80 (1836).
(52) Coman, supra note 25, at 9.
(53) See KUYKENDALL, supra note 24, at 330.
(54) Coman, supra note 25, at 9.
(55) BEECHERT, supra note 22, at 43-45.
(56) Id, at 44.
(57) Id. at 45.
(58) MERRY, supra note 34, at 98.
(59) See An Act for the Government of Masters and Servants [section] 22, PENAL CODE OF THE HAWAIIAN ISLANDS (1850) (repealed 1900); Of Master and Servant, CONN. REV. STAT., tit. 7, ch. 7 (1849); Of Masters, Apprentices, and Servants, MASS. REV. STAT., ch. 80 (1836); Of Master and Servant [section]12, N.Y. REV. STAT., tit. 4, ch. 8 (1852).
(60) An Act for the Government of Masters and Servants [section] 15, 24, PENAL CODE OF THE HAWAIIAN ISLANDS (1850) (repealed 1900).
(61) BEECHERT, supra note 22, at 44. The Hawai'i statute limited this extra time to one year, as opposed to the three allowed in New York.
(62) An Act for the Government of Masters and Servants [section] 25, PENAL CODE OF THE HAWAIIAN ISLANDS (1850).
(63) Of Master and Servant [section][section] 29-31 N.Y. REV. STAT., tit. 4, oh. 8 (1852).
(64) Compare Act for the Government of Masters and Servants [section] 14, PENAL CODE OF THE HAWAIIAN ISLANDS (1850), with CHRISTOPHER TOMLINS, FREEDOM BOUND: LAW, LABOR, AND IDENTITY IN COLONIZING ENGLISH AMERICA, 1580-1865, at 309 (2010).
(65) MERRY, supra note 34, at 99.
(67) William Little Lee, Report, in PENAL CODE OF THE HAWAIIAN ISLANDS (1850).
(70) An Act for the Government of Masters and Servants [section] 22, PENAL CODE OF THE HAWAIIAN ISLANDS (1850) (repealed 1900).
(71) Id. [section] 23.
(72) DAVID W. GALENSON, WHITE SERVITUDE IN COLONIAL AMERICA: AN ECONOMIC ANALYSIS 8 (1981).
(73) WATSON, supra note 5, at 69.
(74) TOMLINS, supra note 64, at 245.
(75) GALENSON, supra note 72, at 8.
(76) TOMLINS, supra note 64, at 253.
(77) IN. at 258.
(78) Id. at 309.
(79) GALENSON, supra note 72, at 174.
(80) Id. at 4.
(81) BEECHERT, supra note 22, at 63.
(82) Id. at 64.
(83) Coman, supra note 25, at 21.
(84) KINGDOM OF HAWAII, BIENNIAL REPORT OF THE CHIEF JUSTICE OF THE SUPREME COURT 5 (1864).
(85) VAN DYKE, supra note 4, at 134 (1876 figure); MERRY, supra note 34, at 126 (1896 figure). By the 1880s, most contract laborers were Asian and European immigrants, not Native Hawaiians. The number of Hawaiians working under labor contracts fell from 1,319 in 1886--already a small proportion of the total--to 399 in 1896 and a mere 163 in 1899. In 1872, Hawaiians and partHawaiians represented 82.8% of the total plantation workforce of 3,846, while the Chinese represented only 11.5%, or 446 workers. By 1882, however, Chinese were 49%, and Hawaiians 25%, of an expanded workforce of roughly 10,000. Between 1882 and 1892, the composition of the workforce shifted further: The Japanese replaced the Chinese as the most numerous ethnic group on the plantations, and the Portuguese became an important minority. RONALD TAKAKI, PAU HANA: PLANTATION LIFE AND LABOR IN HAWAII, 1835-1920, at 28 (1983).
(86) BEECHERT, supra note 22, at 85.
(87) Engerman, supra note 1, at 651.
(88) In re Kakina, 5 Haw. 668, 671 (1878).
(89) MERRY, supra note 34, at 103.
(90) BEECHERT, supra note 22, at 112 (quotation marks omitted).
(91) PROVISIONAL GOVERNMENT OF THE HAWAIIAN ISLANDS, BIENNIAL REPORT OF THE CHIEF JUSTICE OF THE SUPREME COURT 105 (1894).
(92) Id. at 106.
(93) REPUBLIC OF HAWAII, BIENNIAL REPORT OF THE CHIEF JUSTICE OF THE SUPREME COURT 123 (1897). The overall rates were 39% in 1894-95 and 47% in 1896-97.
(94) Id. In 1893, for example, there were 406 total civil cases in Honolulu, the nation's capital and major urban center, but 390 cases in isolated Hamakua on Hawai'i Island--of which 369 cases involved runaway or rebellious contract laborers.
(95) TAKAKI, supra note 85, at 135.
(96) Id. at 72. These figures are from 1903, just after the end of the contract labor period.
(97) King v. Greenwell, 1 Haw. 85, 86 (1853).
(98) In re Lewers, 3 Haw. 21, 22-23 (1867).
(99) Id. at 26.
(100) Bd. of Immigration v. Estrella, 5 Haw. 211,214 (1884).
(101) J. Nott & Co. v. Kanahele, 4 Haw. 14, 21 (1877).
(102) See Estrella, 5 Haw. at213.
(103) In re Gip Ah Chan, 6 Haw. 25, 40 (1870).
(104) In re Wong Sow, 3 Haw. 503,507 (1873).
(105) Kanahele, 4 Haw. at 21.
(106) Hilo Sugar Co. v. Mioshi, 8 Haw. 201,202-03 (1891).
(107) Id. at 204.
(108) Id. at 206 (quoting Slaughter House Cases, 83 U.S. 36, 72 (1872)).
(109) BEECHERT, supra note 22, at 75.
(110) RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM, 1854-1874: TWENTY CRITICAL YEARS 191 (1953).
(111) JONATHAN KAY KAMAKAWIWO'OLE OSORIO, DISMEMBERING LAHUI: A HISTORY OF THE HAWAIIAN NATION TO 1887, at 174-76 (2002) (internal quotation marks omitted).
(112) See TAKAKI, supra note 85, at 135-50.
(113) Id at. at 140.
(114) Id. at 141-42. This attrition helps explain why, although the contract labor system facilitated the migration of roughly 150,000 people to Hawai'i over the course of the nineteenth century, the number of workers on the plantations at any given time was far lower.
(115) Donald Rowland, The United States and the Contract Labor Question in Hawaii, 1862-1900, 2 PAC. HIST. REV. 249, 251 (1933).
(116) KUYKENDALL, supra note 110, at 186 (emphasis added) (internal quotation marks omitted).
(117) Rowland, supra note 115, at 252.
(118) Id. at254.
(119) BEECHERT, supra note 22, at 80.
(120) Id. at 81. For an argument that the contract labor system warranted this label, see Wilma Sur, Hawai 'i "s Masters and Servants Act. Brutal Slaver),?, 31 U. HAW. L. REV. 87 (2008).
(121) Rowland, supra note 115, at 261-62.
(122) Id. at 258 (quotation marks omitted).
(123) Id. at 261 (quotation marks omitted).
(124) MERRY, supra note 34, at 215.
(125) Rowland, supra note 115, at 267.
(126) Id. at 268.
(127) Id. at 268-69.
(128) BEECHERT, supra note 22, at 86. The exact figure, according to Beechert, is 146,279.
(129) Id. at 40.
(130) Watson, supra note 9, at 321.
CHRISTOPHER D. HU *
* J.D. Candidate 2013, Stanford Law School. Many thanks to Amalia Kessler, David Hausman, Lisa Mandle, and Cathleen Hamel Hartge for commenting on earlier versions of this Note. All errors are my own.…