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Colonial Cases

R. v. Howell, 1870


 

[criminal libel]

R. v. Howell

Consular Court, Kanagawa
Robertson, 2 December 1870
Source: Japan Weekly Mail, 3 December 1870, 582

 

H. M. CONSULAR COURT.

KANAGAWA, December 2nd, 1870.

The Queen on the Prosecution of

H.C. Ross Jonson v W. G. Howell.

Before Mr. Vice-Consul Robertson.

This was a motion for a rule nisi calling upon the Defendant to show cause why a warrant on a criminal information should not be granted against him, upon an affidavit showing that the said Defendant intended to defame the plaintiff by publishing a libel against him.

The alleged libel was an article in the Japan Mail of the 26th attention to the extravagant fees constantly charged by lawyers in Yokohama, but in which the complainants name did not appear!

The Defendant in reply to the motion pleaded that no writing, whatsoever constitutes a libel unless it reflects upon some particular person. The party complaining must, by the laws of England, show himself to be specially pointed at by the alleged libel. The complainant was in no sense pointed at, nor did his name even cross the Defendant's mind during the writing of the article as far as he can recall his thoughts at the time. In any information for a libel, the Court must see that the libellous matter be directly applicable to the party complaining. Implication and constructive charge will not do. A libel must be shown to be clearly pointed.

The complainant stated in his motion that he was the only barrister in Japan. In reply it was stated that there are attorney's practising as advocates both in the English and American Courts, and that there is a barrister in Kanagawa who though inhibited from pactising at this time, was practising until lately.

That the alleged libellous matter refers to the past as well as the present. and can in no sense therefore he said to be specially pointed at the Complainant. That the laws of England permit of a free and liberal discussion by the Press of such questions as society is interested in, and that the impugned matter contains nothing which had not for its object the good of society. To pretend that such matter as that contained in the article in question is libellous, would be to strike at the root of an institution to which Englishman owe half their liberties, and deprive society of one of its best and most efficient protectors.

That the charges of lawyers and barristers are proved to have been constantly excessive by the records of the Court, which has on many occasions exercised a wise discretion and largely breduced them.

That the good of society was the sole object of the impugned matter, and there was not the slightest malicious intent to libel or defame.

And that, lastly, there is not a shadow of ground or excuse for this frivolous and vexatious complaint which the Court was accordingly prayed to dismiss,

Mr. JOHNSON, in a speech which would justify any amount of unfavourable comment, and admirably illustrated some, at least, of the reflections made in the impugned article, contended that the matter was pointed at him and referred to authorities in support of his case.=

As it appeared a question whether the Defendant's viva voce statements could be received in evidence, His Honour adjourned the case until Wednesday to give Defendant the opportunity of making affidavit of the statements on which be relied for his defence.

 

Source: Japan Weekly Mail, 10 December 1870, 592-593

HER BRITANNIC MAJESTY'S CONSULAR COURT.

Kanagawa, December 7th, 1870.

Before Mr. Vice-Consul Russell Robertson.

The Queen on the Prosecution of

H.C. Ross Johnson versus W.G. Howell.

This was an adjourned sitting on a case commenced 3rd December.

The Defendant read his affidavit, setting forth that there was not the slightest foundation for the charge. He never alluded to the complainant, whose name, as far as he could recall his thoughts, did not cross his mind during the writing of the alleged libel, and whose very existence did notoccur to him. By no ingenuity could it be pretended that the impugned matter was pointed at the Defendant.

Mr. Johnson, who in the opening of his speech, seemed by his comparative reticence, to have acquired some sense of shame at his conduct on Friday last, proceeded to argue his case on its legal grounds. The Defendant read the Affidavit of one F. W. Marks, an Attorney, which had been yesterday served on him, setting forth that he knew Mr. Johnson, and that in his (Marks's) opinion, Mr. Johnson's opinion was that he was aimed at. To this opinion of another opinion, the Defendant paid all due respect by characterizing it as about the most childish document ever presented to a Court of Justice. Not only this, but it contained a misstatement in regard to facts by averring that the word "Barrister" was used in the impugned matter, whereas the word used was "Barristers," which gave the sentence containing it quite another complexion. Against such an Affidavit, the Defendant, of course, refused to file any counter-affidavit.

Mr. HILL, an American gentleman here rose and asked leave to explain that it was altogether an error to state or suppose that there was only one Barrister practising here, as his functions as a Counsellor-at-law were precisely the same as those of an English Barrister. and he had been admitted to practice in H. B. M. Court. He was, therefore, a practising Barrister in Yokohama. His Honour asked whether he adduced this in en port of Complainant's position, to which Mr. Hill replied "Not at all; it had no reference to the case before the Court."*

His Honour requested the Defendant to call from among the audience any gentleman who would be willing, on an analysis of the article, to state whether in his opinion it pointed to Mr. Ross Johnson. The Defendant, publicly requesting any one but a personal friend to express the desired opinion, selected Mr. Schoyer, a highly respected American gentleman, who at once came forward. On being sworn. and having read over the impugned matter, Mr. Schoyer said he could not find that Mr. Johnson was in any way pointed at, nor did he consider the article in any way a libel, while he considered lawyers charges in Yokohama generally very excessive.

He was cross-examined with irritating insolence, characteristic of the Complainant's opening speech, and it was elicited that he considered the article referred to the present time.

Mr. Johnson then resumed his speech in it manner and tone equally offensive and disorderly,

The Defendant in reply, stated, that he would not stoop to answer the personal discourtesies, which, under shelter of a gown which he had disgraced, Mr. Johnson had levelled at him, but again referring to the terms of his affidavit, placed the case with the utmost confidence in the hands of the Court.

His Honour summed up and  the case.

* (Defendant had inadvertently omitted to state this in his affidavit, and is now pleased to draw attendant ion to the fact, as Mr. Hill has practised in both Courts with as much satisfaction to them, as to his clients.)

Note

After the motion was dismissed, there was a further long article in the Japan Weekly Mail, 10 December 1870, 589-591.

[BK]

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