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Colonial Cases

Essex v. De Malherbe, 1885


Essex v. De Malherbe

French Consular Court, Shanghai
Kraetzer, 27 October 1885
Source: North China Herald, 28 October 1885

Shanghai, 27th October, 1885
Before M. E. Kraetzer, Consul-General, President, and M.M. L. Pila and Oriou, Assessors.
  The hearing of this case commenced this morning.
  The petition of Frederick Essex, of  31, Nanking Road, Shanghai, journalist and a British subject sets forth that whereas on the 15th August last, one R. de Malherbe, a merchant of Messrs. Bovet, Bros.. Kiangse Road, Shanghai and a French subject, did, in conjunction with the Count G. d'Arnoux of the Imperial Maritime Customs Service, and Camille de Pommeyrac of the French Consular service, both of Shanghai and French subjects, challenge the said Frederick Essex to a duel, and that whereas on the 29th September last the said R. de Malherbe did enter the office of the before mentioned Frederick Essex and commit an assault upon him with a riding whip while sitting in a  chair, the petitioner prays:-
- That the aforesaid R. de Malherbe, Count G. d'Arnoux and Camille de Pommeyrac be summoned before you to answer to a charge of challenging the s aid Frederick Essex to a duel.
- That the aforesaid R. de Malherbe be charged on a further count of committing an assault upon the person of the said Frederick Essex with intent to do him grievous bodily harm.
  Frederick Essex, the prosecutor, opened his case in English.  He said: I am 24 years old and a journalist, and reside at No. 4, Szechuen Road.  Until the last fortnight I have been editor of a weekly newspaper started here about nine months ago, and called the Cathay Post.  In my issue of the 15th August last I wrote an article headed "Applaud you may, but hiss you mustn't." (A copy of the paper containing the article was handed in)
  In this article I stigmatised the behaviour of some gentlemen unnamed, who deliberately made a set to hiss an actor, as ill-mannered and unjust.  On the morning on which the newspaper was issued, I received the following communication from R. de Malherbe:-
Shanghai, 15th August, 1885.
F. Essex, Esq.,
Editor (Cathay Post.
  SIR, 0 If you were only guilty of the inconsistency in that article where you advocate the right of hissing and at the same time blame me for using it, I would not take the trouble to answer you, but your last sentence, in which you make use of the epithet, "ill-mannered" applied to my conduct, contains an insult for which I demand an apology,
Yours truly,
R. de Malherbe.
  I replied to that letter as follows:-
Office of the Cathay Post,
  SIR, - In reply to your note to me of yesterday's date, I beg to state that having once committed myself to the type of the Cathay Post. I neither take back nor do I apologise.
F. Essex.
  Two days afterwards I was sitting in Mr. Lindley Cowen's room at the publishing office of the Shanghai Courier, when a boy came in and said two gentlemen wished to see me.  They were shown in and proved to be Count D'Arnoux and Mr. de Pommeyrac, who stated that they had been sent by Mr. Malherbe to demand an apology, and they said they would be content with a private apology.  I regretted my inability to apologise to them, and I told them that the columns of my paper were open to anything that Mr. Malherbe had to say in reply to my article, but beyond that I could do nothing, and they left.
  About half an hour afterwards, they came back to me and Count D'Arnoux said he was extremely sorry, but I must send one of my friends across to confer with them, Mr. Malherbe's house being opposite the Courier office.  I said certainly I would, and as I was seeing them out, Mr. de Pommeyrac mentioned something about time and place.  I said all right and they went away. I then sent Mr. Lindley Cowen across to Mr. Malherbe's house, and they commenced to arrange a meeting between Mr. Malherbe and myself.  I think I had best make this as concise as possible, and I will refer to the document which was drawn up by the gentlemen.  He read this as follows:
  The Cathay Post having published on the 15th August an article referring to Mr. de Malherbe, this gentleman finding that an expression in the article was offensive, asked for an apology from Mr. F. Essex, the author of the article.
  An apology having been refused, M. de Malherbe asked two of his friends, Mr. de Pommeyrac and the Count d'Arnoux to demand from Mr. Essex a reparation by arms.
  Mr. Essex then appointed Messrs. Lindley Cowen and W. Dunman to represent him.
  An interview took place this morning, between the four representatives.  It was at first proposed that a letter should be put before Mr. de Malherbe to Mr. Essex asking for an explanation as to the offensive word, Mr. Essex being willing to replace it by an expression that might be accepted, the friends of Mr. Malherbe asking beside that Mr. Essex should express regret in the same form for having used the first word employed.
  This condition not having been accepted by Messrs. Cowen and Dunman on behalf of their friend, a meeting between Messrs. de Malherbe and Essex was considered necessary and Messrs. de Pommeyrac and d'Arnoux revendicated for Mr. de Malherbe who had been offended, the choice of arms.
  Messrs. Cowen and Dunman then denied this right, basing the objection on the American custom that instead of the one who is offended, it is the offender, who is challenged that has the choice of arms.
  Messrs. de Pommeyrac and d'Arnoux having protested invoking the traditions and the code regulating the matter in Europe, and claiming for their friend the right of using the sword.
  Messrs. Cowen and Dunman having asked to refer the matter to their friend who had been under the impression that in case an encounter was to take place, pistols were to be used, the meeting was adjourned till five o'clock in the evening.
  Mr. Essex having refused to fight with swords though willing to do so with pistols, Messrs. de Pommeyrac and d'Arnoux consider their mandate terminated.
G. D'Arnoux; C. de Pommeyrac; L. L. Cowen, W. Dunman.
  After this Mr. Cowen came across to me and said he had made some promise about keeping this thing out of print.  I did not concur with him, and he simply said he had done this.  I did not concur in it in any way.  Then I made a partial reference to the matter in the succeeding issue - there was one blank page in it, with a circle in the middle of it - and I frankly admit that that was intended to convey an innuendo.  When Mr. Cowen came to me and gave me this document he gave me to understand that Mr. Malherbe was looking out to find fresh seconds, and that I was to keep it secret on the ground that he was going on with the duel.  But for that I certainly should not have entertained it for a moment.
  I waited until the 25th September, and in my issue of that date I published a fictitious account of the whole thing.  I gave Mr. Cowen notice that I was going to do this, and he gave notice to M. Malherbe's fiends about it.  I will not read the article, because it is too long,; but I think anyone who will read through will come to the conclusion that there is nothing ill-natured in the whole thing.  Not a name is mentioned, and I wrote it in the mildest way I possibly could.  Perhaps it might have been different if I had written it with the full names of the parties.  The story appeared in the issue of the paper of the 26th Sept. 1885.
  On the 26th September I was seated in my office, writing, with my back to the door and my head close down to the desk, and opposite an open window.  My office is right opposite Mr. Malherbe's house, in the Kiangse Road, and consequently he can walk up and down this verandah and can watch me as I am sitting at the window, about two or three feet from the door of the room.  While I was writing there, engrossed I n my work, I heard a few words behind me, I do not know what they were, and immediately a whip came down on the side of my head.  I was in an armchair, and could not get out quickly.  The whip cut the side of my head, and the blood fell on the papers and my desk.  I got up and closed with him, and we were wrestling together when Mr. Thirkell, of the Courier office, came up. When Mr. Thirkell came up we had some conversation,  I spoke to Mr. Malherbe, and told him that I had offered to give him the satisfaction he demanded, he had refused it in a cowardly way, and I thought i was justified in holding such a thing up to ridicule.  He said something about his friends not being able to understand the responsibility of pistols; and he said, "Now, Mr. Essex, I have struck you, and you can challenge me." I imagined he wanted to get back to his original idea of a duel with swords.  
  After this assault, I went over to his house. I took a big stick with me, and I thought I was perfectly justified in doing so, if only in self-defence.  I sent up for Mr. Malherbe, and whilst I was waiting I heard something wondrously like the snapping of a Martini carbine.  My stick was no use against that, and I went away and came down to the Consulate here and lodged this charge.  These are the simple facts of the case.  I have no idea of the routine of this Court, and it is quite possible I may have been floundering about and infringing its rules - it is very kind if you to allow me to plead in English; - but I suppose you will allow me to call and examine my witnesses.
  The PREISDENT of the court said the prosecutor could all witnesses, but he would not be allowed to interrogate them, except through the Court.
  John George Thirkell was then called by the prosecutor.  He said - I am 30 years of age, and the editor of the Shanghai Courier and Celestial Empire newspaper.  I remember the assault which is the subject of these proceedings, but I do not remember the exact date.  A little after eleven o'clock on that particular morning I was down stairs in my office, when two of the compositors came from the printing office and told me there was fighting going on upstairs.  I asked who were fighting and the Portuguese compositor said two foreigners - Mr. Essex and another man.  I went upstairs as quickly as I could and found the office in an uproar, all the compositors having left their cases; but none of them were near where the fighting was going on - it was in a corner of the printing room which is partitioned off. I went to the door of the office which was used by Mr. Essex and there saw Mr. Malherbe and Mr. Essex struggling together.  I stood and watched then for a little, as they were not doing one another much injury.  They were clasped together in each other's arms and wrestling. I then stepped forward and said, "Mr. Malherbe, if there is to be fighting you had better go into the street; this office is not a proper place for you to fight in."  They ceased at once, and Mr. Essex c came and stood at the chai by his desk on my right, and Mr. Malherbe stood on my left.  Mr. Essex ordered Mr. Malherbe to leave the office, and I said something to the effect that it was my business to order anyone to leave, and Mr. Malherbe could stay as long as there was no more fighting, Mr. Essex pointed to the blood on the desk and on his coat and said something to the effect that he hoped Mr. Malherbe had obtained satisfaction. Mr. Malherbe replied something about there having been a misunderstanding about the seconds; that they would not take the responsibility he wished them to, or something of that kind.  Mr. Essex then mad a smart reply, and I said "You had better [???t] it finish."  Mr. Malherbe then said something to this effect "I challenged you to fight and your seconds maintained that you had the choice of weapons; now I have struck you and fetched blood you can challenge me."  I had picked up Mr. Malherbe's whip, and I then gave it to him.  He pointed out to me that the knob of the whip was missing.  It was found lying some distance away and I picked it up and gave it to him, and we walked down stairs together.  That is all I know about the matter, but was told a few minutes afterwards that Mr. Essex had gone across to Mr. Malherbe's office with a stick, and I said they could fight as much as they like outside the office.
  In answer to the Court Mr. Essex said he had had no doctor to attend his wounds.
  Mr. de Malherbe hen opened his case for the defence.  After a few preliminary remarks he read a written statement in French, of which the following is a translation:-
  On the 11th August last at the Lyceum Theatre, under the influence of an irritation which many people considered justified by the circumstances, I protested by a hiss against the enthusiasm, greatly exaggerated in my opinion, of a portion of the audience who were encoring a singer whom I took the liberty of finding execrable, even for this country where indulgence in such matters is a duty.  In acting thus, I thought on the authority of Boileau, that I was using a right, celui qu'a la porte ou achete en entrant.  Such was not however the opinion of the Shanghai press, and on the following day I found myself attacked by our three daily papers which, as Mr. Essex justly remarked in his issue of the 3rd inst., treated me very roughly.  I thought I was quite with the writers of these three articles by sending an answer to the Shanghai Courier which had sinned against god taste even more than its contemporaries in the attack directed against me.  A few days later, on the 15th August, Mr. Essex, in his weekly paper, the Cathay Post, thought it advisable to chime in with his contemporaries of the daily press, and ended his critique by a sentence in which he applied the epithet "ill-mannered" to my conduct at the theatre.  His article, wherein the advocates the right of hissing and at the same time abuses me for using it, offered, owing to this extraordinary want of logic, an opportunity for an easy rejoinder.  Mr. Essex complains that I did not seize this opportunity, and treated him otherwise than his contemporaries.  I thought that, having already expressed my opinion in the press about remarks similar to those made by Mr. Essex, there was no occasion for repeating myself, and that the best means of putting an end to the impertinent attacks directed against me was to address the author of the most recent one directly and privately, asking him for an apology.  This being refused, what was I to do?
  Was I to beat a piteous retreat, or resort to pugilism, which is not much honoured in our country, or demand satisfaction by way of arms? It is the last course I followed, because, living in an essentially cosmopolitan country, I thought I could act as I would have done in France.  Moreover Mr. Essex consented to designate two of his friends who, in concert with two of mine, were to arrange the conditions of an encounter.  It is a principle so generally admitted in Europe that the offended party has the choice of weapons, and I was so evidently the insulted party, that my second s refused to admit the pretension of Mr. Essex's seconds, who claimed that choice for their friend.  However, through a feeling of courtesy, which may seem rather exaggerated, as soon as I heard that this question of the choice of weapons was causing a difficulty, I authorized my seconds to accept the weapons of my adversary; but they absolutely refused to surrender what they considered my undisputable right, and stated that refusal in an account of the proceedings which was then drawn up with the assistance of Mr. Essex's seconds.  Being given the European custom about dueling, this account or proces-verbal was entirely in my favour, because of the fact that it established the refusal of my adversary of the weapon I had chosen as the insulted party, and if anybody was interested in keeping it secret, it was Mr. Essex, and not I. So far as I was concerned, I had expressed no wish on the subject, but the four seconds thought very wisely I consider, that it was not desirable that this affair should be noised abroad, and pledged their word of honour on behalf of Mr. Essex and on my behalf that it should not be made public.
  Of this Mr. Essex has taken no account.  At first he contented himself with allusions more or less transparent.  His paper of the 22nd of August contained a blank page printed - as he facetiously said - with invisible ink which would develop by being exposed to strong sun-light for 24 hours.  The following No. (of the 29th of August) contained fictitious complaints from various subscribers who had vainly tried the experiment: some of them expressed disappointment at not finding on the mysterious page "the account of a duello."
  In the Cathay Post of the 5th of September, in an article under the title "When Judges Disagree," Mr. Essex quoted the expressions of which he made use in that letter he wrote me in answer to my demand for an apology.  Lastly, there will be found in the Cathay Post of the 26th September, in a long article of nearly five columns, the detailed account which was supposed to have been printed with invisible ink in the issue of the 22nd August. It would no doubt be too much simplicity on my part to add that he fictitious name by which my friends and I are designated in the account are perfectly transparent even for the least initiated.  
  Not satisfied with throwing ridicule upon us, the writer of the article charges me with malignancy and cowardice. I would direct attention to the heading paragraph of this number of the Cathay Post, in which Mr. Essex informed the public that he will be "on deck" in his office on Sunday morning from 8 to 10 a.m. to superintend the distribution of his paper.  Now this superintendence, which Mr. Essex usually neglects, being totally superfluous, it is needless to say that the information was more meant for me than for his numerous customers, and that the said paragraph contained a kind of challenge addressed to me.  I would have answered it at once, instead of two days later, had I not been absent from my house the whole of Sunday morning.
  I now beg the Court to consider how irritating must have been to me these repeated allusions to an incident which I had been promised would be kept secret, and how exasperating was this long article published six weeks after the incident and in which it was sought to throw out not only ridicule but discredit on my two friends and myself.  I also beg the Court to consider the challenge thrown at me, and they will perhaps excuse the assault which I committed.  Could I bear indefinitely impertinences which dexterously evaded an action for libel before an English Court, but which were impertinences nevertheless?
  In order to bring out the true value of the accusations brought against my friends and myself by Mr. Essex, it will be necessary for me to dwell for a moment on the principles which regulate the duel.  It will be understood that by doing this I do not in the least intend to advocate the legitimacy of this custom.  I had never for an instant doubted, any more than my seconds did, that the choice of weapons belonged by rights to the insulted party.  However, in the face of the imperturbable assertions of Mr. Essex, I thought I must ask for more expressions of opinion from my countrymen.  There are amongst them at present in Shanghai numerous naval officers who certainly are well informed on the subject, since dueling, in the French army, is often enforced by military law.  They unanimously expressed the opinion that the insulted party is entitled to the choice of weapons.  I even have reason to believe that my question appeared to them to betray rather too much simplicity.  By such testimony, I felt sufficiently edified on the custom in France.  However, for the sake of those who like written evidence I had recourse to books, and the only one in Shanghai which, to my knowledge, treats he subject, the  "Grand Dictionnaire Universal du 19e Siecle," by Laroupe, contained, under the heading "lemoins," the following passage:-
  When a cause for a duel exists between two persons, the one who has been insulted must choose two of his friends and send them to his adversary, who introduces them to the seconds to whom he had entrusted his interest.  From that moment the individuality of the combatants disappears entirely until they arrive on the fighting ground.  The four seconds meet together; they first examine whether there is cause for a duel or a peaceful settlement, and arrange the conditions thereof.  It is of the utmost importance to clearly establish he origin of the quarrel and the responsibility of each party.  When the seconds agree that the quarrel cannot be peacefully settled but demands a reparation by way of arms, the person who has been insulted has the right of choosing the weapons he prefers.  The seconds arrange the conditions of the combat, and retire after having done so.
  (Great Universal Dictionary of the 1th Century, by Laroupe, vol. 14, page 1577, col. 3.)
  I would also have made researches in "Monte-Christo," the authority quoted by Mr. Essex in his article of the 26th of September, although I should have preferred a work somewhat more special and less voluminous.  This would probably have led me to conclusions totally different from those at which Mr. Essex thinks to arrive through an incomplete quotation which proves absolutely nothing but no having this work at my disposal, I had to be satisfied with the "Dictionnaire Universal" of Laroope.
  Being now possessed of such poofs on the French custom, I thought to procure some on the customs of other countries.  I asked for information from prominent representatives of Germany, Spain, Portugal, Italy, Sweden, Switzerland, the Brazils, of all or nearly all countries where dueling exists; and not one of them told me that the offender, who received he challenge, has the choice of arms.  I have with me the letters written in answer to my inquiries.  With the exception of two they all simply say, without any comment, that the right of choosing the weapons always belongs to the insulted party; of the other two, one, after saying exactly the same thing, points out the exceptional case when it cannot be clearly established which of the two adversaries is the insulted one; in the other letter, my correspondent says he believes that in his country the choice of weapons is generally settled by the seconds, unless the challenger designates those he wishes to use.
  I have not h lightest reason for doubting the entire good faith of Mr. Lindley Cowen, who behaved in all this affair very correctly and courteously, and I have no testimony of any of his countrymen to oppose to this.  Mr. Cowen, being a citizen of the United States of America, ought to know the custom of his own country as regards dueling.  I might perhaps say that the great number of the States belonging to the Union and the variety of their customs throw a certain amount of obscurity on this question, but I prefer not having recourse to such fineness and will only make three remarks.
  The first is at, neither Mr. Essex no I being a citizen of America and the quarrel not having to be settled in America, it is strange to appeal to an American custom, which, until I have proofs to the contrary, I hold to be unique of its kind.
  My second remark is that duelling has no raison d'etre, that no excuse can be pleaded in its favour, unless it is, as much as possible, a protection for the offended and not a weapon in the hands of the offender.  That it has the latter character, according to the theory which my adversary advocates, seems to me undisputable, and in order to show the absurdity of that theory I can choose no better example than the following: since I stuck Mr. Essex with a riding whip he must, to be consistent, acknowledge that I have become entitled to the choice of weapons in case a duel now took place between us.
  Mt last remark is this: Mr. Essex has sought to represent me as taking advantage of my skill as a swordsman to pick an unjust quarrel with him.  I may say without false modesty that his praise of my skill is exaggerated, and I believe, from what he told the public of the success of his shooting practice in the Cathay Post of the 26th September, that he is a stronger with the pistol than I am with the sword.
  I think I have said enough to show the worth of the accusations brought against my seconds and myself by Mr. Essex, and I feel confident that the Consular Court will find in the heinous nature of those accusations, in the insulting language in which they are expressed, in their utter want of foundation, and in the violation by  M. Essex of the word given in his name by his seconds, as many extenuating circumstances of the assault which I committed on the 29th of September last and for which he now sues me.   Mr. Essex has published, under a series of sensational titles well calculated to allure public curiosity, an untrue account of this assault, in an extra number of the Cathay Post, the sale of which was advertised by him in a rather ludicrous fashion by means of a coolie whom he paraded through the streets of Shanghai with a huge placard.
  There are two ways of altering the truth.  One consists of saying what is absolutely the reverse of truth, and the other of saying one part only of the truth.  Mr. Essex has recourse to both in the statement to which I have just now referred.  He states what is absolutely untrue when he says that I struck him from behind before he could see me; he states only part of the truth when he says that I tried to fingernail his eye out.  I entered the office of Mr. Essex who, as he says, was sitting with his back to the entrance door, which would have made it easy for me to attack him from behind ha I chosen to resort to such means.  I placed myself before him and said: "Mr. Essex I have an account to settle with you," and then I struck him with a riding whip I had brought with me.  All this took but very little time, I must confess.  The object of my call was so apparent that I considered a more lengthy explanation superfluous, besides which I thought that Mr. Essex was not likely to listen to me quietly to the end.  I had hardly struck him with my whip when he jumped on me, and, introducing his fingers into my moth in a most unpleasant manner, tried to tear away my cheek.  I only succeeded in getting rid of his dangerous attack by threatening his eyes, as he relates - a threat which I relinquished as soon as I felt my cheek was safe.
 During the struggle, as he was endeavouring to throw me over the desk and I was doing the same, his head, of which I had secured a firm hold, as he says, struck against a  corner of his desk, and it was then, as I sincerely believe, that the wound of which he speaks was made, and blood drawn.  Of the last circumstance however I do not feel quite sure enough to take my oath of its truth, as I do the truth of all the other statements made above. - All these particulars I have already stated in a letter published in the Mercury of the 30th of September, in answer to an enquiry from the editor.
  The last document which I have had the honour to place in the hands of the Consul General, and which bears No. 15 is the Cathay Post of the 3rd of October, which contains further comment from Mr. Essex on the whole affair.  I feel loath to give a name to the language used in that article, not only in speaking of me, towards whom irritation is natural enough, but in speaking of my seconds, against whom Mr. Essex has no justifiable motive of complaint.  I will only direct attention to Mr. Lindley Cowen's letter quoted by Mr. Essex, in which the latter's conduct is blamed in strong terms and which shows that if he broke the word given in his name by his seconds it was not for want of due warning from them.
  Mr. de Malherbe added - Since writing the above I have received expressions of opinion from four different sources as regards the rules of dueling in Austria and from one source as regards the same rules in Russia.  One of my informants says that in Austria the choice of weapons belongs to the challenged party, but three says it always belongs to the insulted one.  In Russia it also belongs to the man who has been insulted, according to the information given to me.  On the other hand, Mr. Cowen's opinion on the American custom has been confirmed by an officer of the U.S. Navy. I see no reason in these documents to alter the conclusions arrived at in my report.
  The Court then adjourned till 3 o'clock in the afternoon.  On the sitting being resumed,
  The President intimated that according to French law, he plaintiff had no case against the defendant for challenging him to a duel.  The only case which the Court would consider would therefore be that of assault against M. de Malherbe.
  The Prosecutor then summed up his case.  He quoted at length from correspondence which has appeared in the Cathay Post in order to clear himself from the charge of having broken faith in publishing an account of the proceedings connected with the challenge to a duel.  He then reviewed the evidence with the object of showing that the assault had been a premeditated one, committed in a cowardly manner from behind, while he was sitting at his desk.  The position of the blood on his blotting-paper and papers proved conclusively that the blow was struck while he was sitting at his desk, and the position in which the knob of the riding whip was found in the passage outside the door of the room proved just as conclusively that the defendant had struck him from behind, while standing in the door-way, and that he had struck him with the butt end of the whip.
The Defendant admitted that the prosecutor was seated at his desk at the time of the assault, but positively denied having used the butt end of the whip.
  The President said it was a pity that the prosecutor did not have the wound examined by a doctor, who could have given his opinion as to how the cut was caused.
The Prosecutor said he had not thought it necessary.
The Court retired for a brief period, and on re-assembling delivered the following judgment:-
Considering that on the 29th of September last M. de Malherbe went in the morning to the office of Mr. Essex and struck him twice with a riding whip,
That a struggle ensued between the two adversaries which was only terminated by the arrival of a third party,
Considering that this affair which began on the 15th of August last by an article in the newspaper published by Mr. Essex was followed by an attempt at a duel or an arrangement which failed; that during that period and as late as the 29th of September last, articles containing insulting expressions against the defendant were published in the Cathay Post by the plaintiff.
That if, on the one side it is impossible to admit that  a French citizen may take the law into his own hand and use a riding whip for the purpose, it is, on the other side, equally inadmissible that he should be insulted in any public print whatever.
  That in the present case and in order that judgment might be absolutely equitable, it would be necessary that the Court has the power to judge the question of the insults complained of by the defendant, which power the Court has not.
We leave it to Mr. de Malherbe to take proceedings in an English Court against the articles complained of by him and, admitting extenuating circumstances in his favour, and applying to him Article 311 of the Penal Code, we condemn him to pay the minimum fine which is 16 Francs plus the costs of the suit.


Source: North China Herald, 4 November 1885

THE case of Essex v. De Malherbe is one of those childish and discreditable incidents of which the less that is said the better.  We, at any rate, have neither the desire nor the intention to review the decision of the Court or try the matter over again in out columns.  Such a task would be interminable.  It is sufficient to draw brief attention to one point - in our opinion the only important point in the whole dispute.
  The President of the French Court intimated that, according to French law, the plaintiff had no cause against the defendant for challenging him to a duel.  So much the worse, one would think, for French law.  But is there no code, or standard, written or unwritten, by which the provocation which results in a challenge is or may be appraised?  There are some offences which even the sternest moralist might consider sufficient to justify an appeal to arms, - offences repugnant to every instinct of society and humanity, insults in the fullest sense of the word.  But is one man justified, even by French law, in trying to force a duel on another man for expressing the opinion that, on a certain occasion, he was "ill-mannered?" If so, there is no one in Shanghai or elsewhere who can consider himself safe.  We have met with insults of the grossest and most malicious nature in the local press - insults and misrepresentations whose falsehood was only equalled by the ruffianly manner in which they were levelled - and these were allowed to pass without the honour of a remark.  Mr. Essex, for expressing an honest and widespread opinion, and using a term which, justifiable or not under the circumstances, was, we maintain, moderate and inoffensive is challenged to a combat with swords when he might easily have been killed or injured for life, and the French Consul-General upholds the challenger.  Comment is superfluous.  It is quite enough to thank M. Kraetzer for the very valuable lesson he has given us respecting the code of honour which exists in France, and to act upon the warning.

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