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Colonial Cases

Bertrand v. Howell, 1870

[libel]

Bertrand v. Howell

British Consular Court, Kanagawa
Lowder, 10 June 1870
Source: Japan Weekly Mail, 11 June 1870, 266-267

IN H. B. M.'s CONSULAR COURT, AT KANAGAWA,

Before F. Lowder, Esq., H.B.M.'s Consul.

Chas. Bertrand. vs. W. George Howell.

Friday, the 10th June, 1870.

Defendant was charged with having maliciously composed and, in his newspaper, the Japan Weekly Mail of the 14th May last, published the following, for plaintiff, defamatory statement:

"An advertisement of an exceptionally impudent and discreditable character appeared in the Japan Herald on the 10th instant, purporting to come from a French subject, one Bertrand, but which has evidently been concocted for him by some one who had not shame enough to prevent his prostituting the English language to such wretched purposes.

In this advertisement Bertrand is made to say that a " difference with a Chinaman respecting the quality of some Dollars has disturbed" -so runs this disgraceful effusion-" his wonted serenity of mind," the facts we believe being, that on this difference arising Bertrand administered to the Chinaman a kick in the stomach from the effects of which the poor fellow died.

Has Bertrand been indicted for manslaughter, as he assuredly should be ?

Instead of asking this question, or performing any such part in regard to a grave offence of this kind as befits its functions as a Journal, the Herald inserts this ribald advertisement, which is as disgraceful to a paper as the act of Bertrand was to him as a man."

Damages were laid at $1,000.

Mr. G. Wallace Hill for plaintiff, produced in evidence the Japan Weekly Mail of 14th May, and read the incriminated article. He then called as witness

Mr. Prince, sworn:-I am a resident of Yokohama: am the general manager of the Japan Mail; am employed by Mr. Howell. The paper is daily, weekly and fortnightly. (Presented copies in evidence). This is the weekly.

Mr. Howell. -I entirely admit the publication.

Witness:- Mr. Howell is editor. I am not aware it he is proprietor. I do not know of anything having occured between plaintiff and defendant.

To Mr. Howell:-You have never under any circumstances mentioned Mr. Bertrand's name to me.

Mr. Bertrand, sworn :-I reside at No. 61 in Yokohama. I have never seen Mr. Howell before the visit I paid to him on the first Monday after the publication. It was in the morning; I met Mr. Prince; who said that Mr. Howell would be in at 12. He said, "We have authentic proof of the death of the Chinaman. When I afterwards saw Mr. Howell, he said he was quite sure of the thing, and he would do nothing in regard to my denial unless I wrote him a letter for insertion in his paper. Afterwards, Mr. Howell came to my store, and declared he was very sorry, and ready to give me damages. But I told him that I had already put the matter in the hands of my lawyer, to whom I referred him. Mr. Howell offered to pay me $1,000 and to put an apology in his paper. At my first interview with Mr. Howell I had not myself read the paper. I had been informed of the contents by a friend. I did not then make any demand on Mr. Howell. Afterwards I read in a morning paper of the Japan Mail an apology.

To Mr. Howell:-You told me to write a letter and you would insert it. You did not say that you would make such remarks upon it as would entirely exculpate me. I told you that I am "bon garcon," and that none of my friends would believe me guilty of manslaughter, but those who are not my friends would believe it. " Bon garcon " is just my character. I did not then threaten you with legal action, only asked for a contradiction.

Mr. Hill here objected to the question as to when Mr. Bertrand went to see Mr. Hill.

Mr. Howell said his object in asking the question was to show that this action had not been brought spontaneously by Mr. Bertrand, but through the animus of a third party.

The Court ruled that the question, if not put now, could be put in afterwards.

Mr. Bertrand:-I committed the assault. When the Chinaman said I had given him a bad dollar I struck him with the ruler, and he went and complained of me in the French Consulate. There I was fined, through absence, being in Yedo. The Chinaman belongs to the Consulate or French Post-office.

I stayed a long time in your oflice. We spoke about my travels in different countries, but that I could repeat in two minutes. When you came to my store, you offered, in the presence of Mr. Geisenheimer, to refer the matter to the arbitration of three gentlemen, chosen by me, and declared yourself ready to pay any amount fixed upon by them. My credit has not suffered by the charge, because I have no credit. I said that the charge brought a great many people to my store, and so far served as an advertisement. Everyone in town, of all nations, advised me to bring this action, and to lay the damages at £1,000.

It may be five or six days after the publication that I went to the British Consulate to take legal steps. The advertisement in the Japan Herald upon my departure for France is my composition. It is the sequel of my first advertisement when I came back from Yedo. The failure of my agents in France to execute my orders is the reason for my going home.

To Mr. Hill.-I did not go to the French Consulate; I never go to Consulates. I was absent and was fined two dollars. I received the summons at 5 o'clock in the afternoon, and instead of going to the Consulate, I went next forenoon to Yedo. The fine was for the assault upon the Chinaman. When I said, I had no credit, I meant to say that I do not buy on credit in Yokohama, all my credit is in Europe.

Mr. Hill here handed in another number of the Japan Weekly, where an article shows that the editor and the proprietor is the same person. He then proposed to have Mr. Kent sworn in order to take his opinion as a member of the press on the injury done to the plaintiff and the proper amount of damages.

To this Mr. Howell demurred.

Mr. Bertrand to Court.-The reason why I put my damages at $1,000 is that it is the smallest amount the law accords in cases of this kind. When Mr. Howell in my store offered me $1,000, I did not accept it, because I thought I might get more by going to law. I had already consulted with a lawyer. At that time I thought of $5,000. Many persons told me that two or three thousands of dollars would not be too much. There was a great excitement in the city at that time. I did not according to Mr. Howell's suggestion write him a letter denying the truth of the article.
 

This was the plaintiff's case.

Mr. Howell.-Observed that he had no intention of evading any responsibility. The best proof is that the indictment was laid in a false name and therefore illegal, but he would take no advantage of that. Sworn.-The facts are as follows. On the Thursday previous to the 14th I heard at d[?] that Mr. Bertrand had killed a Chinaman by a kick. The matter was stated so circumstantially that I did not for a moment doubt its truth. I thought the case so grave that as it had taken place in the previous fortnight, I felt myself somewhat culpable for not having remarked upon it. The next day my attention was called to the advertisement that had appeared in the Japan Herald on the 10th. On the Monday subsequent to the publication of the Japan Mail Mr. Bertrand called at my office in the morning and stated that it was entirely untrue that the Chinaman had died from the effects of the assault. I at once expressed my regret at having been misled, that I fully believed the statement to be true, and I added that if he would write me a letter, I would make my remarks upon it and offer him ample reparation. Mr. Bertrand said nothing however with regard to legal action, he said his friends knew him too well to be "bon garcon" to believe it, or for it to do him any damage, but as it was false, it was important that it should be contradicted. Mr. Bertrand had already called on Sunday but did not meet me. Our conversation was perfectly friendly. I fully expected to receive a letter from Mr. Bertrand, and that was the reason why I did not in my morning's paper recall the statement. Next day I again sent for the Chinaman, and having heard his story, without waiting for Bertrand's letter, I wrote an article for the Japan Daily Advertiser of the 18th May. (Put in as evidence, and read.) On the following morning I was passing Mr. Bertrand's store, and I said to him that I trust the apology had been satisfactory. Mr. Bertrand then went to his desk and recounted the whole transaction. His tone and manner had now changed from what they were on Monday. He spoke of the damage done to him. I offered him, that if he would submit the matter to three gentlemen chosen by himself, with my approval, I would pay him the amount at which they might fix his damages. Mr. Bertrand did not accept of the arbitration. The same morning, I think. I had a visit from Mr. Hill, who spoke to me of my offer to leave the matter for arbitration. He expressed his willingness to have the matter settled by the payment of $1,000. I at once refused to pay that amount, and our interview closed. On the subsequent Saturday, the 21st, I inserted an article in the Japan Weekly Mail. (Put in as evidence and read.) Mr. Bertrand's name and person were wholly unknown to me until I saw the advertisement which called forth my remarks. There could, therefore. be no possible malice.

To Mr. Hill.--I believe it was at 'a dinner at the International Hotel on the Thursday previous to the publication that I first heard about the manslaughter of the Chinaman. I heard it again reported at the Club, or on the Bund before the publication of my article. I cannot remember if it was I who introduced the topic in conversation. I cannot say how many times I may have been at the Club or on the Bund between the evening of the 12th and the evening of the 14th. It is possible that those who afterwards mentioned it, were present at the dinner table.

It was Bertrand himself who called my attention on the first interview with me to the Chinaman's advertisement in the Echo du Japon. Mr. Bertrand himself told me that he was indicted at the French Consulate, and the Chinaman told me that Bertrand had been fined $10.

To the Court.-I did not make any on enquiries to verify the truth of the report of the Chinaman's death. I no doubt of its truth as I had heard it so circumstantially stated on more than one occasion.

Mr. Howell called as witness:

Mr. Russell Robertson, sworn. -The advertisement of the Herald and the rather bad terms in which it was couched was introduced as a topic of conversation at the dinner table of the International Hotel, and the death of the Chinaman generally commented upon.

To Mr, Howell.-The conversation upon these topics was both before and after the publication of Mr. Howell's article. I think the conversations followed so closely upon each other, that the one was in the night and the other at breakfast. But at the one at night I do not think Mr. Howell was present. It was certainly stated by more than one member of the mess that the Chinaman had died. The remarks upon the Chinaman's supposed death were the reverse of humourous [sic]. I remember Mr. Bertrand coming and making his complaint in the Consulate.

To the Court.-When the conversation turned upon the subject of the Herald's advertisement, I asked for the meaning of the phrase "on account of difference with a Chinaman." I cannot remember to have heard the Chinaman's death mentioned previous to the above dinner. The impression conveyed to me from the general tone of the conversation was, that the Chinaman had really died. I think I can name Mr. Pitman as one who mentioned that the Chinaman had died. I do not remember Mr. Howell's presence at the dinner table that night.

This concluded the defence.

Mr. Howell, in summing up, declared his surprise at Mr. Bertrand's legal proceedings. They had no doubt been suggested by third parties. Mr. Bertrand had not given the least proof of having sustained any damage. No one could suspect any malice in the article. The matter was taken up by him solely on public grounds with a good end. Mr. Bertrand had already been injured by the Chinaman's advertisement: he had been fined for the assault in the French Consulate, and in this present action he trades upon the bad fame he had already acquired. I plead to have been in error.

Mr. Hill remarked that the apology had been published in another paper than the defamation. Defendant had himself acknowledged that the advertisement in the Echo du Japon was first brought to his notice by Mr. Bertrand, and nevertheless he did in his published apology quote that advertisement as a palliation for the accusation. It was not impossible that, as the Japan Weekly Mail is published in the evening, it might have been in the hands of the diners at the table d'hote in the International Hotel, and given rise to the conversation deposed to by Mr. Robertson. I merely suggest this as possible. As to damages, he thought it had been put at a very moderate amount, considering the injury done to the feelings and reputation of plaintiff. The moderation of the amount is partly explained by the heavy fees that have to be paid in this Consulate.

The Court congratulated Mr. Hill on his able pleading. Judgment given for plaintiff, with nominal damages.

Source: Japan Weekly Mail, 18 June 1870, 278

We have no particular reason to find fault with the Echo du Japon, because it disagrees with the judgment of H. B. M. Consul in a late case in which the Editor of the Japan Weekly Mail appeared as Defendant in an action brought against him by M. Bertrand. The Echo is generally polite, if occasionally inclined to show a little animus against us. But we think it well to quote a few passages from a great text book on the English law of libel, that of Chief Justice Holt, which will show how far the English and French systems differ, and what considerations may be urged in the former of which the latter takes less cognizance.

The flrst passage regards the end and object of the act, and is as follows: " The law chiefly regards the end of every act, and, if that be decidedly mischievous, it considers the means of subordinate import."

The second passage regards the damage sustained by the Plaintiff. "The ground of the action on the case for a libel is the quantum of injurious damage which the person libelled either has, or may be presumed to have sustained from the libellous matter."

Again "The special damage must be particularly specified in the declaration. A loose and general statement of injuries resulting from the slander is not a sufficient allegation to maintain an action for special damages."

As regards the pleas of a Defendant, Chief Justice Holt says,- "When the defendant is brought up for the judgment of the Court he is permitted to produce affidavits in extenuation of his offence; to inform the Court of the real state of his case, and thereby to mitigate the punishment of his crime. He may show that he has acted under error, irritation, or the impulse of momentary anger. He may supply by his own aflldavit. or that of others, facts and circumstances necessary to exhibit the case in its proper colours."

One more remark may be made to these extracts. The law will not permit a man to trade on a flcticious [sic] grievance, and when it has been proved, as it was proved, that M. Bertrand never pretended any injury either to his reputation or his business until some days after the commission of the offence complained of, motives for the prosecution may be inferred which destroy all chance of a favourable verdict, for the law will not allow itself to be made a stalking-horse for that malice or malignity in others which, there can be no possible question, was the moving cause of Bertrand's action. Defeat, therefore, in such a prosecution can never be dissociated from disgrace both to principals and seconds, while no possible stigma can remain on a Defendant whose conduct arose solely from error.

[BK]

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