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Colonial Cases

R v. Tatham, 1863

[assault]

R. v. Tatham and others

Consular Court, Yokohama
1863
Source: The North-China Herald, 19 September 1863

 

YOKOHAMA CONSULAR COURT.

THE following judgment has been delivered by the Consular Court at Yokohama, in the case in which the Japanese accused three Englishmen, named Thomas Tatham, George Robert Davies and Richard Bell Davies, of an unprovoked assault on a Japanese officer.

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, finds that there is no satisfactory evidence to establish the charge against the Defendants in Law.

Firstly. - The testimony of Morotamon stands alone and unsupported, so 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 through for want of identification.

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 about only in self-defence.  Japanese laws of honour may require such proceedings on the part of their Military Officers; bit on the other hand, Foreigners cannot be deprived in this country of the right of s elf-defence.

Looking to the circumstance 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 native as a practice which no sane or sober-minded man in this country ought to give way to, their employment would hardly avail the 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 debouchement of a narrow jetty on the main road, that the parties were then about five yards apart, and that horses tangled together on such ground, could not be put to their full speed at once: it sees no 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 those reasonable apprehensions of injury which justify the use of means of self-defence.

In conclusion, the Court finds the defendants "NOT GUILTY.'

(Signed) CHARLES A. WINCHESTER, H.B.M.'s Consul.

Assenting: CHARLES RICKERBY, WILLIAM KEMPTNER, EDWIN J. SPENCE, Assessors.

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