The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-04-27

/ OPINION OF THE COURT, BY JUDD, c..
: The defendant was convicted in tn
2 District Court of Honolulu on the lat
: November, 1895, of the offense of foot
t binding" and appealed to this CouI
5 on points of law. The law alleged to b
violated is Act 9 of the Republic, en-
: titled IAN Act to prevent Foot Bind
: ing" approved on the Goth July, 1895
1t is as follows:
Section 1. The term 'foot-bindine
+ as in this Act used shall be held t.
mean the compression, mutilation, in
jury OF deformity caused to the feet
young girls; also the means used to 81
compress, mutilate, injure or deforn
such feet, as well as any attempt to d.
the same.
Section 2. Foot-binding is hereb!
forbidden and any person who binds
or attempts TO bind the feet as GOV.
cred or intended to 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
|
| trict magistrate, to pay fine of not
less than twenty-five nor more than
five hundred dollars, or to be impris-
oned at 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 a time to be stated by such
ma criC OF q
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. binding ex-
listing at the time this Act shall go into
effect, provided the same are not i'm
mediately discontinued, and every con-
tinuation of such foot-binding shall
constitute new offense. Nothing here
in contained shall be held to relieve
any person who has assisted or been
privy to any foot-binding from all of
the pains and penalties of the laws rel
alive to 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 |
offense, 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 |
counsel moved for the de- |
fendant's discharge. The difficulty |
with this Act is that it does not define |
foot binding" to be the COMPRISING, |
mutilating, injuring or deforming the |
feet of young girls, but it defines foot |
binding as 1.-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 |
larry as a house which has been broken |
and entered, or larceny as goods in the |
unlawful possession of another. The
inanimate object, as the house which |
has been broken and entered, cannot be
punished. A nuisance may be abated, |
but it cannot be punished, though those |
who maintain it may be. The second |
phrase of Section 1 is even less intelli-
gible. Foot-binding is 'also the |
means used to compress, mutilate, in
jure or defOrm such feet, as we'll as any
to do the same" In Section
is forbidden and "any per-
son who binds or attempts to bind the
feet as covered or. intended to be cover
ed by Section 1 Of this Act" etc., is
punishable. This means Gf 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
)ther appliances. Evil conditions or re-
suits are not punishable; human actions
which cause these conditions or results
nay be. The remainder of Section 2
night be capable of enforcement if we
we're authorized to take the ordinary
meaning of the term foot-binding as the
'ffense for which the Act prescribes
punishment, but where the Act itself
lefines the offense, courts are restrict
I'd to the statutory definition, which
seems to US to be insensible, and this
'enders the Act imperative and void.
We held in re Brito, Haw. AZ, that
it is abhorrent to justice to punish
nan unless the offense is clearly de-
ined by the law, and his duty in re-
pect thereto made certain. 1t is our du-
y to give effect to this law if it is pos
'ible. But we are not to make a
,enal statute where none exists"
Having decided that the Act is mop
rative it will not be necessary to pass
lpon other points raised by defend
lnt's counsel, or his criticisms upon
'ther portions of the Act. Notwith-
standing the latitude given to courts in
constituting an Act of the Legislature,
n order to ascertain its meaning and
1--WE effect to it if possible, we are I'M
lble 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. s.