Twelve Foreign Men

ABBY MULLEN: Hey y’all, I’m Abby Mullen and this is Consolation Prize, a podcast about the United States in the world through the eyes of its consuls. At the beginning of this season, we laid out for you a plan: to talk about how consuls intersect with the ideas of Manifest Destiny–how consuls and expansionism go together. And we did several episodes at the beginning of the season on that topic. For this final episode of Consolation Prize, we’re returning to the question of Manifest Destiny. And we’re returning to a place and time we’ve been before: 1840s Hawai’i. In our previous Hawai’i episode, we talked about consul William Hooper as an investigator. Today, we’re returning to William Hooper today to talk about how he decided to be a lawyer as well. He wasn’t that good at being a lawyer–in fact, his ill-conceived efforts caused him to set a chain of events in motion that were still being talked about more than 50 years later. 

MULLEN: Before we get into the story, I want to remind you that this is it for Consolation Prize. This is our last normal episode. We will be releasing a retrospective episode, where I sit down with our team and talk about what we have learned making this show and we look back on some of our favorite memories. So if you’re sentimental like we are, be on the lookout for that episode. But we also want to hear from you–and maybe even incorporate your voices into that episode. So I want to ask you one more time to leave us a voicemail (if you haven’t already) sharing with us what you’ve learned from listening to our show. You can do that at our website, consolationprize.rrchnm.org. 

MULLEN: It has truly been a pleasure to share these consular stories with you over the past two years. In this last episode, we’re going to take on a really complicated story about how one consul overreached his authority–and changed the United States’ relationship with Hawai’i. 

MULLEN: We should probably set up our story today by pointing out two things. First, it might seem like we end up going all ‘true crime’ mode on you whenever we’re talking about Hawai’i. Some of it is probably just coincidence – that these are the stories that stuck out in the consular dispatches for Hawai’i. But some of it might also have to do with the nature of the area: it was (and is) a chain of islands in the middle of the Pacific. Hawai’i is near good routes for commerce and good whaling grounds. So Hawai’i had a high population of foreign sailors. And there were a lot of farmers and a lot of missionaries. So there was a lot of contact between locals and foreign populations.

MULLEN: The second important thing is that today’s subject is going to be very sensitive. The case that we are going to be looking at was categorized essentially as a misdemeanor in 1844. But what we’re going to see and hear is, from our perspective, clearly a case of sexual assault. We aren’t going to go into detail about the assault, but if this is an especially hard topic for you, take care of yourself if you choose to listen. 

MULLEN: In the 19th century, sailors seem to have taken trouble with them wherever they went. We’ve talked about this before.

JOSE ARGUETA FUNES: In the early 19th century, Hawai’i becomes enmeshed in a series of extraction networks, first through the sandalwood trade connecting your American powers with China. And then through the whaling trade. It becomes essentially sort of a warehouse for a lot of whaling expeditions from a lot of different parts of the world. 

MULLEN: This is Jose Argueta Funes, a fellow at Columbia Law School and a legal historian. He helped us understand some of the issues with sailors during this era. 

ARGUETA FUNES: In that time, sailors become a huge problem. They’re rowdy they create all sorts of problems. And one of the main problems they create is that they father, they father children, and then they leave. And so the chiefs are very concerned with the problems created by the foreigners and are sort of struggling to, with how to grapple with it.

MULLEN: The more sailors, who were almost exclusively men, the greater likelihood of certain types of crimes. Noelani Arista, a historian at McGill University, has written about some of these issues in her great book, The Kingdom and the Republic: Sovereign Hawai’i and the Early United States. She writes about how sailors came to the islands expecting to have full access to all of their heart’s desires–especially their sexual desires–and they wanted them, whether or not the Hawai’ians wanted to grant them access. So of course, these unruly foreigners led to a lot of problems in Hawai’ian society.

MULLEN: Jose told us that these problems led to significant changes in the law in Hawai’i over time. Those changes were just beginning in the 1840s.  

MULLEN: In 1844, an American named John Wiley was accused of raping a local woman named Kamaka on the island of Oahu. It seems likely that Wiley was living as a semi-permanent resident in Honolulu at the time. Wiley was brought before the police court of Honolulu, and he was convicted by two magistrates. The penalty for his assault was a fine.

MULLEN: Vice consul William Hooper reported: 

WILLIAM HOOPER: Mr John Wiley, a citizen of the United States has informed me that he was taken before the judge of the police court of Honolulu on Friday last charged with having committed the crime of rape on the person of a native of Oahu—, that, notwithstanding no evidence was produced to establish the truth of the charge, he was condemned by the judge to pay the sum of Fifty dollars. The crime alledged against Mr Wiley is one of a very grave nature, and the hearing of the case should, in my opinion, be before some higher tribunal than that which convicted him.

William Hooper to Mataio Kekuanao’a, August 27, 1844. National Archives and Records Administration, Despatches from U.S. Consuls in Honolulu, Hawaii, 1820-1903.

MULLEN: OK, a few clarifying remarks here: First of all, there was evidence. Kamaka herself testified, as did at least one other witness. So Hooper is underselling the case against Wiley. 

MULLEN: Second, if you’re thinking, “The penalty for rape is only a $50 fine? That seems horrific”–we agree. Hawai’i was very slow to make sexual assault a serious crime. But change was on the horizon. Within a few years, this kind of crime went from a misdemeanor to a felony, or, in the parlance of the day, from an “offense” to a “crime.” So if this case had happened a little bit later, this whole thing would have played out very differently. 

MULLEN: Vice Consul William Hooper took a special interest in this case–he certainly didn’t write back to the State Department about every small crime committed by an American. So, why was Hooper so interested in this case? Honestly, we don’t really know. It seems like Hooper saw an opportunity to build his own reputation in Honolulu. He wanted to assert American dominance, or at least equality, with the European powers in the area. And he also seems to have thought that Wiley’s penalty for the rape was too light, and he wanted more. But Hooper misunderstood almost everything about the Hawai’ian systems of law and governance. 

MULLEN: It’s not clear whether John Wiley sought out Hooper after his initial conviction, or whether Hooper sought him out. Either way, Hooper became convinced that Wiley had not received a fair trial. He persuaded Wiley to appeal the ruling. In order to appeal, Wiley had to pay another $25 to the court, in addition to the $50, which he had already paid. That’s a lot of money in 1844. But the key to the appeal–for Hooper anyway–was that it would take place in front of a jury. 

MULLEN: Now, why Hooper wanted Wiley to get in front of a jury–also not clear. But the question of the jury soon became the key sticking point of the whole case. Hooper wanted to control who sat on the jury. So he wrote to Mataiao Kekuanao’a, the ali’i of Honolulu whom Hooper called the governor.  By law, Hawai’ian juries in this context were supposed to have a specific grouping of people on them: half of the jurors would be Hawai’ian, and half could be foreign. But that wasn’t good enough for Hooper. He wanted all of the jury to be foreigners–no Hawai’ians at all. And he insisted to Kekuanao’a that he had the legal right to get the jury he wanted. He even provided Kekuanao’a with a list of jurors that he had hand-selected.

MULLEN: Here’s how he got there: he had heard that Kamehameha, the chief ali’i, had told an American official, George Brown, that he thought of the Americans as absolutely equal to the European powers that Hawai’i had dealings with. Hooper took this almost as a kapu–a binding statement on Hawai’ian power. So he felt that Kamehameha had given the United States most favored nation status. 

MULLEN: Hooper also had heard that the British had recently signed a treaty saying that in Hawai’i, they had the power to empanel an all-foreign jury for any criminal proceedings that might arise. 

MULLEN: So, unofficial pronouncement of most favored nation status for the United States, plus British ability to empanel an all-foreign jury, equalled American ability to empanel an all-foreign jury as well.

MULLEN: There were just a few problems: One, Kamehameha’s pronouncement was not a kapu, and it definitely wasn’t a treaty, which is the only way the United States could officially have most favored nation status. And two, the British had no treaty stipulation for offenses such as John Wiley’s. 

MULLEN: This is what Mataio Kekuanao’a told Hooper when he broached the subject. So then Kekuanao’a denied his request–and denied it again, several times. 

MULLEN: Hooper was annoyed that the United States was not being treated the same way the British empire was. Britain was allowed to choose its own jury of English people for local trials – why couldn’t the United States?

HOOPER: The Governor refused to grant me the privilege of nominating a jury of foreigners–a privilege, which by the III Art. [third article] of the treaty made in Feby [February] last between this country and Great Brittain, is allowed the British Consul.

William Hooper to Secretary of State John C. Calhoun, September 10, 1844. Consular despatches.

MULLEN: Hooper didn’t really know what he was talking about here. The British treaty did not speak to this specific circumstance–an appeal for a minor offense. The treaty he maybe should have cared more about was the French treaty, which did have more relevance. Either way, he was on very shaky ground–but he didn’t think so. He insisted that Kamehameha’s offhand comment meant that they shared treaty status with these other foreign nations.

HOOPER: Under all [the] circumstances, the Government of the United States would never consent that its Citizens, resident here, should not be on an equal footing with the subjects of other nations.

Hooper to Calhoun, September 10, 1844.

MULLEN: Hooper could say this kind of thing to the Americans in Hawai’i all he wanted, but they were not the ones he had to convince. And he was getting nowhere with Kekuanao’a. A little insider baseball on the process of jury selection–it’s kind of similar to today in the United States: there’s essentially a bag of potential jurors, maybe even written on slips of paper and put into a box. There’s one for the Hawai’ians and one for the foreigners. The jury is selected at random from the box of jurors. So while the jury is half foreign and half Hawai’ian, the jurors within those groups are not handpicked. However, Hooper handpicked a list of twelve specific foreigners whom he wanted on the jury.  

HOOPER: I am fully persuaded that it would not be safe in important cases, to trust to the verdict of a jury composed of natives; Although they might be perfectly honest, yet circumstantial evidence, or the wishes of any particular chief, would influence them quite as much as proof to the point.

Hooper to Calhoun, September 10, 1844.

MULLEN: Funnily enough, two of the foreign jurors appeared on both Kekuanao’a’s list and Hooper’s list. And Hooper didn’t see any contradictions in his concerns about chiefs’ undue influence on Hawai’ian jurors versus his own literal handpicking of a jury of his friends. I think we can call some of that racism. But it also betrays a complete misunderstanding of the relationship between the ali’i, which he calledd the “chiefs,” and their constituents. Here’s John Laimana, a historian of Hawai’i, to explain where Hooper went wrong.

JOHN KALEI LAIMANA: So you hear a lot of times, especially in the Pacific, this word called mana, right? And unfortunately, it’s been translated all the time as power but power so tangible, and it’s like, okay, you pass them the torch, they have automatically have the power. No, that’s not really so, right, you have some kind of respect. But if you don’t behave properly, you start to lose mana because you are in a state of heva. Right. And as more people start to see that, that mana starts to shift to the point where you have no mana, and then nobody listens to you.

MULLEN: Instead of simply thinking about mana as ‘power,’ John likes to talk about it as the trust between people. Of course, that trust can then become a kind of power. John sees mana as a kind of “currency” that is exchanged between neighbors, between rulers and subjects, and between foreigners and native people. The exchange of mana is what held Hawai’ian society together. The ali’i are the people who are in charge of a given Hawai’ian community and help set the example for the whole group. 

LAIMANA: Ali’i will gain more mana, if they make good decisions. They bring good ideas and they support the people in the different ahupua`as. So that by the time foreigners come, especially in the missionaries, that mana and that trust, and that’s the other thing mana creates that trust, right? It’s such a high level that even the missionaries are astounded, right, because they start writing their journals that the ali’i can give nothing that we could call advice, because as soon as the people find out what is their desire, it is done. The misinterpretation comes afterwards, right? When they try to figure out? Why are the people so loyal, so trusting of their ali’i? And the only answer, they can come up with this, it must be because they have been under long oppression that they cannot think for themselves. And that’s what they fear, right? That if it’s all native, that ali’i is going to make the decision but it couldn’t be further from the truth. It’s just this trust relationship to the point where they trust the ali’i to make certain decisions.

MULLEN: Kekuanao’a had no reason to trust in Hooper’s judgment–and he certainly wasn’t going to risk his own mana to give Hooper what he wanted. 

MULLEN: After multiple rounds of angry letters between Hooper and Kekuanao’a, Wiley’s new trial date came: September 4, 1844. Hooper just couldn’t stand by while Wiley, an American, was convicted by a jury of native Hawai’ians. So consul Hooper decided it was time to don his lawyer hat and defend Wiley. Hooper convinced Wiley to drop the lawyer he already had and trust in the consul to get this cleared up. Perhaps we could say that Hooper was trying to build some mana of his own. 

MULLEN: Hooper was not a lawyer. But Jose told us that who counted as a lawyer and who didn’t was…fluid in the 19th century. 

ARGUETA FUNES: I think the ideas of who was a lawyer are a lot more flexible in the 1800s. And in Hawai’i, particularly then we think of it today. And now we think of it as someone who, you know, goes to a law school, and passes a bar exam and some jurisdiction, but law schools were really kind of new institutions in the 1800s. And they weren’t that common. Most people became lawyers by going to a lawyer’s office and apprenticing. Essentially, you buy a book of law, and you annotate it, and you sweep the floors of the office, and you learn in the process of being just there. And so I wouldn’t say it’s that uncommon to find people who might not think of as lawyers acting as lawyers.

MULLEN: Hawai’i’s geopolitical position made the practice of law squishy. Many people from many different places–and many different legal traditions–found their way to Hawai’i. Figuring out whose law applied when–that was complicated. And the Hawai’ian ali’i didn’t hesitate to try to pit these many influences against each other. 

ARGUETA FUNES: So Hawai’i is really in a precarious position. It’s, it’s protected. I hesitate to use the word protected. It is caught in a sort of like, great game between France, the United States, and Great Britain. And it’s able to, like the chiefs are able to play off these powers against each other. But it is a really precarious position. And so the demands being made by this man, this consul, are not rare.

MULLEN: He’s talking about Hooper here intervening on behalf of John Wiley. 

MULLEN: Hooper didn’t let his lack of legal training stop him from diving head-first into Wiley’s case.  

MULLEN: There are several competing narratives here. What Hooper told the Secretary of State is very different from what the Hawai’ian minister of foreign affairs, Gerritt Judd, told the American commissioner, George Brown, after the fact. It’s worth noting that Judd was an American transplanted to Hawai’i. He was one of several Americans who held high office in Hawai’i. Hooper and Brown thought that his American roots might give them an advantage–or at least a more sympathetic hearing. But it didn’t. The dispute over who was telling the true story and how it should be interpreted ended up being published in a 275-page pamphlet. Almost every point of the whole proceeding was contested, and in all of the proceedings, the narratives are different as well. Hooper and Judd differed in their accounts of everything from what crime Wiley was accused of, to how the jury was selected, to what the laws said. We can’t lay out all the disputed ground here, so we’re leaving out some of the complications. We’re going to try to give you the hard facts based on both Judd’s very long publication and Hooper’s unpublished reports back to the State Department.

MULLEN: So, to review: John Wiley assaulted a Hawai’ian woman. He was supposedly interested in marrying her, but when he met her, he assaulted her instead. He insisted that he had done no such thing, but the Honolulu police court convicted him and fined him $50. Under the guidance of consul Hooper, Wiley appealed his conviction, and he asked for a jury trial. In this trial, he would be the plaintiff–in other words, he seems to have been suing the Hawai’ian government for wrongful conviction. (It does not appear that Hooper understood this part of the legal system.) 

MULLEN: The jury trial was scheduled. According to law, the jury was to be made of 6 local Hawai’ians and 6 foreigners. This is where consul Hooper had the problem. He wanted all 12 members of the jury to be “foreign”–American. So he stepped in to intervene supposedly on Wiley’s behalf. One could argue that this is his job as the consul–to take care of Americans abroad. 

MULLEN: Except, according to some of the sources about the trial, Wiley did not want Hooper’s help. As one report worded it, Wiley “did not desire the interference of his consul” but Hooper interfered “on his own behalf.” In fact, later on, one observer described it as though Hooper, as the consul, actually infringed on Wiley’s rights as an American. But Hooper saw an opportunity to possibly test whether or not he could exercise American power over the Hawai’ian legal system. So, despite Wiley’s wishes, Hooper stepped in. 

MULLEN: Hooper didn’t seem to care about the facts of the case. He barely ever even referenced those–and when he did, one person said that Hooper had said he hoped that the jury would convict Wiley. Jose said that Hooper was trying to make a procedural defense–arguing about the process, rather than the facts. It’s a case over American power and privilege that Wiley is caught in the middle of. 

MULLEN: Hooper was not successful in getting an all-American jury. So when the trial date came, things got weird. The trial was held on September 4, 1844. 

MULLEN: On the day of the trial, when it was going forward with a jury consul Hooper didn’t approve of, he was furious. He marched into the courtroom and told Wiley to fire his lawyer–Hooper would be acting as his lawyer. Then he wrote out a protest about the proceedings, right there in the middle of the courtroom. 

HOOPER: Before the court proceeds to the trial of Mr Wiley I beg to state that by a treaty entered into between this government and that of Great Brittain on the 12th of February last, the subjects of [the] latter were secured in the privilege of being tried, when charged with crime against the laws of this country, by a jury appointed by their consul, that I claim, in virtue of the assurances given to Mr Brown, the U.S. Commissioner, by His Majesty the King in Oct last, which secured to the citizens of the United [States] equal privileges with those of the most favored nation that Mr Wiley, the defendant, is entitled to a jury appointed by me, as acting U.S. Consul.

The Court, as at present Constituted, I protest against, and request that it may be entered on the records of the Court.

Enclosure in Hooper to Calhoun, September 10, 1844.

MULLEN: Hooper later sent a copy of his protest to the secretary of state, including all the spelling and grammatical errors that indicate his haste and anxiety. He convinced John Wiley to, in his words, “make no plea.” In other words, Wiley was going to drop the suit and the appeal. So the case was never heard. The jury was never even sworn in. So after all that hullabaloo, John Wiley never got his jury trial at all. And for his troubles, he didn’t get his $50 back, or the $25 he had paid for the privilege of a jury trial.

MULLEN: Over the next two years, John Wiley was back in court at least two more times with money problems. And in each case, the commissioner and yes, William Hooper, got involved in his cases. But Hooper eventually won the question of an all-foreign jury, at least one other time: just a few weeks after Wiley’s trial, another American was in court accused of a sexual crime–this time, adultery with a Hawai’ian woman. Hooper demanded a jury of foreigners for that case, and he got it. We might split hairs about how these two cases are different, but Hooper didn’t see them as different. 

MULLEN: These interactions with the Hawai’ian government raise the question yet again: “What is the consul’s job?” Supposedly to take care of Americans. But it’s really hard to pin down Hooper’s end game here. He seems to be using Wiley’s case as a test balloon–looking for ways to change Hawai’ian law and practice that might help Americans in the future. But in the process, he made the lives of Americans in the present, like John Wiley, anything but better. (Though let’s just be clear, the testimony in this particular case is pretty damning–he deserved everything he got.)

MULLEN: Extraterritoriality was on the horizon for Hawai’i’ and the United States.  Almost all of the problems that irked Hooper in 1844 wouldn’t have been present had Wiley been tried in the 1850s–Wiley might have even been tried by Hooper himself. In 1893 when the United States was considering the annexation of Hawai’i, the ultimate moment of US expansionism, John Wiley’s case was cited as evidence for why the annexation was needed. So I suppose in the end, Hooper won.