The Hawaiian gazette., 1896-04-28

he QGIGlOdul hdS IL Iu'
District Court of Honolulu on the 14tl
November. 1895, of the offense of foot
binding" and appealed 70 this Courr
on points of law. The law alleged TO bt
violated is Act 9 of the Republic, en-
titled An Act to prevent Foot Bind
ing," approved on the 26th July, 1895
II is as follows:
Section l. The term 'foot-binding
as in this Act used shall be held 10
mean the compression, mutilation, in
jury or deformity caused TO the feet OF
Young girls; also the means used TO so
compress, mutilate, injure or deform
such feet, as well as any attempt TO do
the same.
Section .. Foot-binding is hereby
forbidden and any person who binds
or attempts TO bind the feet as COW
cred or intended 10 be covered by Sec
ton ! OF this Act, or who shall author
ize or permit foot-binding, such person
being a free agent, or in any manner be
a party or privy thereto, or shall in
any wise countenance the same, shall
be liable, on conviction before any dis
triCt magistrate. to pay fine of not
less than twenty-five nor more than
five hundred dollars, or to be impris
Oned al hard labor not less than ten
days or more than two years, or both,
at the discretion of such magistrate; or
such person or persons may in place of
such punishment leave the Hawaiian
Islands at time TO be stated by such
magistrate. and a return within five
years shall be deemed to be revival of
the sentence suspended by such de-
portation.
Section 8. The terms hereof shall
apply TO all cases of foot-binding eX-
isting al the time this Act shall go into
effect provided the same are not i'm
mediately discontinued, and every con-
-inuation OF such foot-binding shall
constitute a new offense. Nothing heGe-
in contained shall be held to relieve
any person who has assisted or been
privy 10 any foot binding from all of
the pains and penalties of the laws rel
alive 10 assault and battery, manning
or any other appropriate Law"
A motion was made by defendants
counsel to strike out all that portion of
The charge that purports TO state the
0ffense, as the Act which the charge
follows does not set out any punishable
offense. The position taken by counsel
for defendant is that the Act is inca
pable of reasonable meaning and is
therefore imperative and void; and on |
the conclusion of the evidence for the |
prosecution counsel moved for the de- |
PENDANTS discharge. The difficulty |
with this Act is that it does not define |
'foot-binding" 70 be the COMPRISING, /
injuring or deforming the |
feet Of young girls. but ii defines foot
binding" as the compression, mutila-
ton, injury or deformity caused to the
feet Of young girls If the compress
sion and deformity is caused" some
one must have caused it, but the caus-
ing is not made punishable. The Act
does not define the acts and doings of
a person which. if done, the law makes
punishable. but it states the result of
the acts and doings as the Of
tense or criminal act itself. 1t would
be equally insensible TO define burg
AIRY as a house which has been broken
and entered, or larceny as goods in the
unlawful possession of another The
nanimate object, as the house which
has been broken and entered, cannot be
punished. a nuisance may be abated.
but il cannot be punished, though those
who maintain it may be. The second
phrase of Section l is even less intelli-
gible. binding is "also the
means used TO compress, mutilate, in
lure or deform such feet, as well as any
attempt 10 do the same" In Section 2
Oot-binding is forbidden and any per-
son who binds or attempts TO bind the
.eet as covered or intended to be cover
ed by Section l of this Act" etc, is
punishable. This means Cif anything) |
hat the resulting compression. mutila-
ton, injury or deformity to feet are
punishable, and also the means used,
which are, presumably, the bandages or
other appliances. Evil conditions or re-
suits are not punishable; human actions
which cause these conditions or results
may be. The remainder of Section 2
might be capable of enforcement ii we
were authorized to take the ordinary
Of the term foot-binding as the
onenSe for which the Act prescribes
punishment, but where the Act itself |
defines the offense, courts are restrict
ed to the statutory definition, which
seems 10 us to BE- insensible, and this
renders the Act imperative and void
We held in re Brito, Z Haw. 40, that
1T is abhorrent to justice to punish
man unless the offense is clearly de-
fined by the law, and his duty in re-
spect thereto made certain. 1t is our du-
~ 10 give effect to this law if it is pos
Sible. But we are not TO make
penal statute where none exists"
Having decided that the Act is mop
7ratlve it Will not be necessary to pass
upon other points raised by defend
ants counsel, or his criticisms upon
other portions of the Act. Notwith-
the latitude given to courts in
constituting an Act of the Legislature.
in order to ascertain its meaning and
give effect to it if possible, we are un-
able TO do so in this case without vio-
emily changing the plain meaning of
he words used therein.
Defendant is discharged.
L. A. Dickey for prosecution. A. :.
for defendant
Honolulu, April Il, 1896.
r. IL Il .