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Colonial Cases

Warnecke v. Marcal, 1877

[libel]

Warnecke v. Marcal

Portuguese Consular Court, Amoy

1877

Source: The China Mail, 2 October 1878

The letter from "J. O. Wardlaw" we publish in another column appears to be somewhat characteristic of that gentleman.  It will be remembered that a few weeks ago we commented at length on certain proceedings in the Portuguese Consular Court at Amoy, which ultimately resulted in the proprietor of a small newspaper at that port being fined and imprisoned for publishing a very sill advertisement having some reference, among other matters, to "a rusty old gun and a China poodle fog.":  These proceedings were presided over by Mr. J. O. Wardlaw, acting as Portuguese Consul.  In out comments on the case we stated that the advertisement was a foolish one, but expressed our opinion that no English jury would ever, upon the evidence appearing in the official report of the case, regard it as a "malicious libel," or venture to treat it as otherwise than a rather miserable joke.

It was, however, in regard to the remarks appended by Mr. Wardlaw to his report of the proceedings, when forwarding the case to the Governor of Macao for decision, that we chiefly took objection.  We published a portion of those remarks - those to which our objection applied - as follows:-

I hope the Honorable Court at Macao will publish the real author of this malicious advertisement by the infliction of such a substantial fine on the Publisher as shall mark its detestation of such cowardly and un gentlemanly conduct (but should, as is quite possible in the opinion of the Court) this anonymous writer and briber meanly breaks faith with Mr. Marcal by subsequently refusing to pay the fine, should such be imposed, it is to be hoped that this Credulous Publisher will in his own defence divulge the name and nationality of the author of this defamatory advertisement, when he can be dealt with by his Consul, and thereafter be held up to Public contempt, such mean, cowardly and corrupt conduct merits.

The objection we expressed to these remarks was that "we could not help thinking that, in forwarding the facts and evidence in the case to the Governor of Macao for decision, the expression of any opinions by Mr. Wardlaw on the same, at least in such strong terms as those in italics, was both unnecessary and inopportune.

Mr. Wardlaw charges us in his letter, published in another column, with designedly omitting the first half of his remarks, although the portion most relevant to the case, and carefully misapplying the second half.  To this we reply that we certainly did omit the first half of his remarks, for the very reason that they may have been relevant, or proper, to the case, and not open to objection on our part, while we quoted and criticised the second half, because it appeared to us to be uncalled for, inopportune and rather violent.  To say, however, that we designedly misapplied the part we quoted is a deliberate mis-statement.  It will be obvious to the most cursory reader of Mr. Wardlaw's comments at the trial, which are reproduced in full in the course of his letter elsewhere, that no misunderstanding as to the application of the remarks to which we took exception could arise through our quoting merely the third paragraph of those comments - the only paragraph to which our objection applied.

Presuming, however, for the sake of argument, that we had misapplied Mr. Wardlaw's remarks, the merits of the case would not be affected in the least.  Mr. Wardlaw, in forwarding the case to Macao for consideration, stigmatised the conduct of the author of this wretched advertisement as "malicious, mean, mischievous, cowardly, and corrupt"; - we simply said the evidence appearing in the official report of the case, on which the Governor of Macao was asked to form his decision, did not, in our opinion, prove that the plaintiff had been maliciously libelled, and that, anyway, Mr. Wardlaw's sweeping denunciations went beyond the bounds of official propriety, seeing that the case was to be adjudicated by a higher authority than himself.

Mr. Wardlaw does not attempt to defend the judgment in the case, or to justify the strong epithets he applied to the writer of the advertisement, as well as to the publisher of the paper.  He concerns himself chiefly with savage accusations against this journal for recording the fact that, almost simultaneously with the publication of the report of this case, appeared an announcement that Mr. Wardlaw had himself been fined a very heavy penalty for assault and battery on a fellow resident in Amoy.  Mt. Wardlaw seems to consider this occurrence a private matter; we regard any offence against the laws of the country as a public matter, that any newspaper possesses the right to [place on record.

In using the epithets "cowardly, mean, corrupt and malicious," under the circumstances pointed out, we hold that Mr. Wardlaw committed an indiscretion; in breaking the peace by punching another resident's head, he certainly committed another; and both these matters being public ones, we fail to see why they should not be mentioned in the same column, especially as the one is rather corroborative of the other.  As to the allegation that our comments on the case were dictated by private malice, it will be a sufficient reply to say that they were written in the usual routine of business by the editor of this journal, whose knowledge of Mr. Wardlaw, or of any of the other parties in the affair, was entirely derived from the Directory.

To the editor of the 'CHINA MAIL."

Amoy, 30th Sept., 1878.

SIR, - It is only within the past two days that my attention has been called by friends to an Editorial which appeared in your issue of 9th instant, containing an attack of a libellous nature on myself in my public capacity of Consul, while at the same time a malicious reference is made to an occurrence in my private life as a citizen, and this is done while ostensibly purporting to comment fairly on the proceeding in the case of libel tried before me in the Portuguese Consular Court, at Amoy, in December last.

...

What I did say and which has been purposely omitted was as follows:-

In forwarding this case for decision to Macao, I shall call the attention of His Excellency the Governor to the fact that the decision of this case involves a principle which His Imperial German Majesty's Consul is most anxious should be upheld, and in which opinion as expressed by him I would entirely concur, viz. 'That it would be a precedent of the most dangerous kind if the Author of a malicious libel, published under an anonymous signature, should go unpunished, and were Mr. Marcal or any other Publisher allowed to conceal the name of the libeler, without thereby incurring any penalty for so doing, it would afford unlimited scope to the mischievous effusions of every cowardly pen hiding itself behind the shield and liability of the published, and by so doing deprive the party aggrieved of real redress, and of the means of reaching the actual author of the libel." ...

But to return to the case already specified, the criticism of my remarks, and my motives, when concluding the case of Warnecke v. Marcal, it had and could have no possible connection with the vase of assault on Mr. Anderson, and in which I figured as the defendant; the real merits or demerits in that case are happily known and sufficiently appreciated within the limited circle of respectability existing at Amoy, but I nevertheless must take exception to the obviously malicious and covert attack attempted to be made upon my private character, while ostensibly professing merely to criticise my proceedings when acting in my public capacity of Consul in my own Court, convened under proper and sufficient authority six months anterior to the occurrence of Mr. Anderson's affair and to which allusion is maliciously and wantonly made.

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