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Colonial Cases

R v. Moss, 1861

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R. v. Moss

Consular Court, Kasagawa
1861
Source: The North-China Herald, 5 January 1861

 

By dates from Kanagawa to the 17th December, brought by the steamer England, we learn that the trial of Mr. Moss in the British Consular Court for having shot a Japanese was still pending.  The wounded man was in imminent danger, still refusing to allow the arm to be amputated.  The Governor withheld his sanction to the operation being performed without permission from the man's father who was at Nagasaki; in the mean time there was no chance of his life being saved as mortification of the part had set in.  A notification resulting from the event was issued by Mr. Consul Vyse; a copy of it, printed on board the steamer England, has been handed to us, a reprint of it is given below.

Copy of a Notification addressed to the British Community of Yokohama, by H. B. Majesty's Consul at Kanagawa.

BRITISH CONSULATE,

KANAGAWA, Dec. 6th, 1860.

No. 15.  NOTIFICATION.

The late deplorable collision in which an officer of the Tyenon has been dangerously wounded and is likely to lose his life, renders it imperative on the undersigned H.B.M.'s Acting Consul to take measures to prevent the repetition of such untoward occurrences.

'British subjects have already been informed by public Notification that the pursuit of game by fire-arms is prohibited by Japanese laws, within the limits of the port; but it now seems necessary to advise them, that residence in a foreign country carries with it by the common polity of nations the obligation to obey its laws:- this obligation holds good in Japan no less than in other countries, in all cases, where exemption has not been especially stipulated by Treaty in the form of specific rights and privileges.

The right to disregard any Japanese laws - not especially suspended, is not a privilege conceded by the Treaty of Great Britain with Japan; certain Treaty rights exist by express stipulations, and all that legitimately follows as necessary to the full enjoyment of them is secured, but nothing beyond: - the manifest law of Japan is in all other respects as binding upon foreigners, as on Japanese.

It behoves British subjects to understand distinctly, therefore, that they are not only responsible for the infraction of Japanese laws, where these have not been suspended in their favour by Treaty stipulations, but, according to the law of Great Britain, for all the consequences that may ensue from the commission of an unlawful act.

So far does this law go, that if one intending to commit a felony, undesignedly kill a man, it is murder; if even where a person  does  an act  lawful in itself, but in an unlawful manner, and without due causation and circumspection, and a life is lost, it must be either manslaughter or murder according to the circumstances.

A person therefore going out shooting, more especially after the warning given in Notification No. 15 of 1859 does deliberately violate a Japanese law, and acting at the same time in defiance of an understood prohibition emanating  from the British Authority, whose jurisdiction me must acknowledge, commits a misdemeanor, and if he resist a Japanese officer, who in the performance of his duty seeks to arrest him for this or any other offence against Japanese laws, he is equally guilty of a serious and aggravated offence, becoming  further responsible for any evil consequence that may attend his resistance; nor will it avail anyone to plead that he did not know the person arresting him to be in the lawful execution of their office, as a ground of exemption from the penalty attaching to such offence.

The undersigned, therefore, calls upon British subjects within his jurisdiction, carefully to abstain from all wilful violations of the Japanese laws, and at the present moment especially, reference is made to Shooting, and the Pursuit of game.

There are certain restrictions and prohibitions to this sport in most countries - in many, very stringent ones - in none can a Foreigner or anyone indeed shoot over another man's land, if he does not choose it or without his leave; the hardship of this case is therefore by no means so great, nor so singular as has been alleged, even had residents in Japan no more serious and legitimate objects to pursue; but it were ten times more so, while such is the law they must abide by it.

The Undersigned is further called upon to remark upon the common practice of carrying Firearms during the day and in the most ostentatious manner; there is no apparent danger to justify this practice, while on the other hand it is itself a source of danger by provoking hostile feeling and distrust amiong the natives, and placing within reach of many, whose non-command of temper under provocations or whose discretion under other circumstances cannot be trusted, such dangerous and deadly arms as revolvers.

There is something essentially provocative and irritating in such ostentatious display of Fire-arms by men supposed to be following the avocations of merchants, which neither are or ought to be altogether peaceable; nor is the danger one which afflicts only the person carrying the weapon, or anyone assailed, but it may at any moment involve a whole community in Peril.

Source: The North-China Herald, 2 February 1861

WE now lay before our readers such particulars as we have been able to collect of "The Queen versus Moss" tried in the British Consulate Court at Kanagawa.

For the better understanding of the trial, we first give a short narrative of the occurrences which led to it.  Our account of the arrest is based upon the reports of respectable Japanese who saw it, and corroborated by Mr. Moss's affidavit.  The circumstances of Mr. Moss's release from the Japanese jail are well known to all residents in Kanagawa.

Following the general practice of his countrymen, Mr. Moss went out on a shooting expedition on the 26th November last, returning the following day.  Shooting has frequently been objected to by the Japanese, and a Notification was issued by the British Consul in 1859, requesting British subjects to abstain  from the sport for a time, pending certain negotiations which were going on between the Foreign Ministers and the Japanese high officers at Yedo.  In deference to the Notification, shooting was left off for the remainder of that season.

At the beginning of the present season, however, no further notice having been issued on the subject, the sporting community resumed their amusements.  The Japanese again complained, but their remonstrances were but lightly regarded by the foreign Consuls, who, with their subordinates enjoyed the sport as much as the other residents.  A few days before Mr. Moss's affair was discussed at an interview between captain Vyse, H.M.'s Consul, and the Governor of Kanagawa.  In answer to the Governor's complaint, the Consul remarked that he could do nothing to remedy the evil unless the offender were produced, together with the gun and the game.  This was intended as a baffler to the Governor; but he seems rather to have accepted it as a challenge - for Mr. Moss, when returning from shooting, through the streets of Kanagawa, was arrested by some twenty Japanese at the direction of the said Governor.

Mr. Moss, seeing himself menaced by a large party of armed men, evidently thought his life was in peril, and stood on his defence - pointing his loaded gun at each of his assailants in succession with the view of keeping them off.  Presently, however, distinguishing one of the officers who was well known to him, Mr. Moss's apprehensions were allayed, and, grounding his weapon, he advanced to speak to the officer.  At that moment he was seized from behind, thrown down and bound with sharp cords.  His gun was wrestled from him, and in the scuffle, one of the barrels exploded, wounding a Japanese officer very severely.  Mr. Moss was then savagely maltreated, being beaten about the head with small iron weapons used by the Japanese police for the purpose of stunning refractory victims, and forthwith lodged in the Japanese prison, still tightly bound with small cords.

The British Consul, hearing through the townspeople what had occurred, at once sought information from the Japanese Authorities, but they denied all knowledge of the affair - Subsequently, having ascertained who the captive was, the Consul again waited on the Governor and demanded the surrender of Mr. Moss as a British subject, - with which demand the Governor flatly refused compliance.Nor was it until two o'clock the next morning when, backed by the French Consul;-General and the Prussian Commodore with a couple of field pieces and a party of marines, the English Consul; again urged his demand, that Mr. Moss was delivered over to the custody of his Consul.

Some days later Mr. Moss was committed for trial on three counts which are in substance as follows:

  1. For wilfully violating Japanese laws and Consular regulations by shooting game.
  2. For resisting officers in the lawful execution of their duty.
  3. For wilfully wounding an officer.

A hoist of witnesses appeared against the prisoner, all of them being of the party who arrested him.  None appeared for the defence, which is accounted for by the circumstance that none but Japanese were spectators of the collision, and those natives on whose information the Consul had traced Mr. Moss after his capture, dared not for their lives appear in Court to say anything not prescribed by Government.  In point of fact, there was not one disinterested witness on the trial.  All of them were government officers, who under the most favourable circumstances, must of necessity have taken their instructions from their superiors as to the evidence they were to give; and, the Interpreter being also a Government officer facilitated the arrangements materially. 

A preliminary investigation had been gone through, part of the time within closed doors.  The trial was in open court, but only a few of the witnesses were re-examined, the original depositions being for the most part just transferred intact to the minutes of the trial.  It will readily be believed under such circumstances, that the Japanese so far as the evidence went had it pretty much their own way, the witnesses all stoutly declaring that Mr. Moss took aim at the officer who suffered, and shot him deliberately; and that it was for that alone that they arrested Mr. Moss.  (They had on the previous day arrested and bound a foreigner returning from shooting, who had not even a gun in hjis hand.)  The defence consisted of Mr. Moss's declaration on oath, drawn up on the day following his capture, detailing minutely every circumstance that occurred from the time he left his home on the 26th November until his arrest on the 27th.  This statement had no reference to the trial, as it was volunteered before there was any mention of criminal proceedings against Moss.  The shooting was avowed, as also the pointing the gun all round the front of his assailants before the accident, but he declared that when the explosion took place, the gun was beyond his control.

The result was a verdict of "Guilty" on all three counts - The three Assessors dissented from the judgment and the minutes were sent to Yedo to Mr. Alcock who confirmed the verdict, and returned it with some strictures on the assessors.  The sentence was - A fine of $1,000 - deportation from Japan - and three months imprisonment in Hongkong - and, it seems, further deportation to England.

The reasons given by the assessors for their dissent are as near as we can gather to the following effect.

On the first count. - No evidence has been adduced to prove even the existence of a Japanese law applicable to the case. And the Consular Notification of 1859 which the Court now construed to convey a prohibition to the practice of shooting, could mot have been so regarded prior to Moss's capture, as not only did the residents shoot with impunity, but the Consular officials also, and even Mr. Alcock's Secretary had come to Kanagawa for the very purpose with Mr. Alcock's sanction, on the day of Moss's capture.  The assessors therefore considered that the prisoner had not willfully violated any law or regulation.

On the second count. - Mr. Moss had no reason to suppose that the party who attacked him were police officers in the execution of their duty - The Japanese had stated at the trial that they merely wished to ask his name - but it did not require twenty men to do that, so that excuse must fall to the ground.  And considering the numerous murderous attacks that had been made on Foreigners in Kanagawa, Mr. Moss had reason to be apprehensive, and was justified in standing on his defence.

On the third count. - From the manifest perjury of all the witnesses, the assessors deemed their evidence utterly valueless.; While on the other hand Mr. Moss's statement carried truth and probability on the face of it, admitting as it did several points which seemed to bear against himself - and in the absence of reliable evidence to the contrary they gave credit to Mr. Moss's statement, and considered it was not proved that he had wilfully shot the officer who was wounded.

The Consul paid no regard to the opinions of his assessors and the sentence was forthwith put into execution.

So ended the first important trial in a British Consular Court in Japan - such is the precedent given to the Japanese to guide them in their future dealings with Englishmen.  Were the verdict supported by the clearest evidence, the sentence is unreasonably severe.  Mr. Alcock has gone to the full extent of his powers if not considerably beyond them, and has altogether forgotten that even "justice should be tempered with mercy" - We must seek out of court for a clue to this cruel sentence - Mr. Moss is in fact expiating the sins of the Yokohama community in Hongkong Jail - We can only hope that one such sacrifice may be sufficient to appease the vengeance of Mr. Alock, and that he may now consider accounts squared between himself and his offending subjects.

We subjoin a copy of a letter from Mr. Moss to a friend here, which we have been permitted to publish.

HONGKONG  JAIL, 24th January, 1861.

To----- ------ Esq.,

Shanghai.

DEAR SIR, -  I received your lines (opened by the authorities) yesterday with corrected account attached; but owing to my present position, and absence of my papers, I am as yet unable to examine the documents.  At as early an opportunity as I can I will do so, and settle these long outstanding accounts.

I thank you for your kind wishes respecting my case, but fear I shall be unable to change my position here.  At present I am incarcerated in the Debtor's prison, and in quarantine for fourteen days.  No communication with my friends is allowed, and it is only through the kindness of the Governor of the Jail that I am permitted to write these lines.

My present state, although unenviable, - (living on prison fare, a loaf of bread and a tin of tea water) is however so far bearable that I am alone.  But I am informed that at the end of my quarantine I shall be placed in the criminal jail, and live amid the malefactors there, without even the solitude of a cell to take refuge in.  This is indeed a terrible prospect.

In addition to all this, and after my term of three months imprisonment is passed, I am to be deported to England - so that Mr. Alcock has not been sparing in his kindness.  It is the knowledge of the gross injustice and hardship of my case, and the consciousness of my own innocence that supports me now, though I look forward with horror to the end of the quarantine.

Once more thanking you for your kind wishes.  I am, yours faithfully,

(Signed) MICHAEL MOSS.

Source: The Inquirer (Perth), 27 March 1861

Latest from China.

(From the Straits Times of February 7th)

...

Great caution should, therefore, be used in censuring the acts of Her Majesty's officers in the performance of their unpleasant duties, with regard to those of their countrymen who may be guilty of infringing the laws of the land.

At a meeting of the Supreme Court on the 28th instant, Mr. Moss, who had, accidentally or otherwise, shot a Japanese official, for which, by the decision of the Consular Court at Kanagawa, he was sentenced to a fine of 1000 dollars, deportation from Japan, and, in addition, (by Her Majesty's Minister) to three months' imprisonment in the gaol of Hong King, was set at liberty through a legal error in the form of committal.  As the good name of Mr. Moss and well as that of Mr. Consul Vyse and Her Majesty's Representative at Yeddo, is concerned in this affair, the friends of all parties are desirous that the merits of this extraordinary case may be duly investigated, so that justice may be done to each and all.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School