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Colonial Cases

R v. Davies and Davis [1863]

[shooting and wounding]

R. v. Davies and Davis

Consular Court, Kanagawa

Source: Empire (Sydney), 19 November 1863



Kanagawa, 9th September, 1863.

THE QUEEN - upon the information ex officio of the Governor of Kanagawa versus Thomas Tatham George Robert Davies, and Richard Bell Davis

Charge - Shooting at or wounding, or, the being accessory to the shooting of and wounding of Morotamon, a Japanese officer, on the evening of the 30th July last, at Kanasawa, within the Consular district of Kanagawa.

The Court, as above constituted, sat to-day to hear this case, which was one of deep interest, and the foreign community accordingly attended in considerable number to watch the proceeding.  The arrangements of the Consular Court were admirable.

Mr. Otha, one of the Japanese interpreters who accompanied the Embassy to Europe (a very clever man), and L. Fletcher, Esq., one of H.B.M.'s legation, were in attendance to interpret the evidence of Morotamon, who appeared with his arm bound up, but on the whole looking tolerably  well.

The Consul opened the case by reading the information and recording the plea of the defendants - not guilty.

The Consul then laid down the law of the case clearly and fully from "Russell," "Archbold," and "Alson."  The observations of the defendants, the evidence of the defence, we are obliged by want of space to defer publishing for the present; but we publish the all-important part - the finding of the court - for the satisfaction of our readers and for the gratification of the friends of the defendants.

The evidence having been completed on both sides, the Court retired to consider its decision, and on coming into court again, the consul stated shortly that in view of the decision of the court he considered it matter of congratulation for the defendants that the case had been as fully and thoroughly gone in to and investigated.  After suppressing an attempt of the audience to give an inconveniently noisy expression of their approval of his statements, the consul read the following decision:-

The Court having considered the evidence of Morotamon and others, tendered on behalf of the Crown, as well as that brought forward for the defence, find that there is no satisfactory evidence to establish the charge against the defendants in law.

Firstly. - The testimony of Morotamon stands alone and unsupported as far as other oral testimony is concerned.  No second witness corroborates his statement - and but for the magisterial declarations of the defendants, the charge might have fallen though for wan t of identification.

It appears that there were other Japnese present, whose evidence would have been received had they been brought forward.

Secondly. - The fact of Morotamon having drawn his sword before he was fired at, was fully established by his own evidence in Court - although in the original information it was stated that his sword was not drawn until after he was wounded.  The defendants seeing him in pursuit of them with a drawn sword, could hardly suppose that his intentions were limited to a demand for explanations of words used, while the sword was being waved only in self-defence.  Japanese laws of honour may require such proceedings on the part of their military officers; but, on the other hand, foreigners cannot be deprived in this country of the right of self-defence.

Looking to the circumstances of their being pursued by a Japanese officer with a drawn sword, the defendants, even supposing the opprobrious words complained of were spoken, could not infer any other intention in such pursuit, than one of grievous injury to themselves.

While the circumstances of the country generally demonstrate the danger and imprudence of making use of abusive terms towards the natives as a practice which no sane or sober-minded man in this country ought to give way to, their employment would hardly avail to counterbalance or invalidate the plea of self-defence, provided the other evidence, oral and circumstantial - proved the existence of actual immediate danger.

Thirdly. - With respect to the actual existence of such danger, threatening one or more of the defendants at the moment Morotamon  was wounded, the Court finds that the shot was fired in the debouchment of a narrow jetty on the main road, that the parties were then about five yards apart, and that horses entangled together on such ground, could not be put to their full speed at once; it seems  reason to doubt, therefore, whether up to the time at which the shot was fired, the being on horseback was of much advantage, save to the foremost of the party, and finds itself led to the conclusion  that the danger was then and had not ceased to be of such a character as to excite the reasonable apprehensions of injury which justify the use of self-defence.

In conclusion, the Court finds the defendants - Not guilty.

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