While the sore as to the location of the settlement was still somewhat raw, the Minister found yet another grievance against the merchants in the fabulous demands for Japanese coins which a few of them had put forward, by way of burlesquing the system of distribution by the native authorities. The severity with which this schoolboyish escapade was pilloried, and the community of Yokohama held up to the opprobrium of the world, was felt by them as going beyond what the merits of the case warranted, and the incident did not tend to mollify acerbities on either side.
A year later evidence of a certain widening of the breach became more conspicuous in the course of a rather exceptional lawsuit, in which a merchant was heavily mulcted for an offence of which the general opinion was that he was not guilty. A certain Mr Moss was arrested, cruelly maltreated, and hidden from his official protector, the consul, by a posse of Japanese police, for having shot game in the vicinity of Kanagawa. When faced by these armed men, Mr Moss cocked his gun and threatened any one who should approach to lay hands on him. The party was numerous enough to surround and wrest the gun from him, which somehow went off, wounding one of the men badly in the arm. The Minister ordered the consul to prosecute Mr Moss for murder, in the Queen's name, the consul himself being judge, sitting with two assessors. The accused was sentenced to pay a fine of 1000 dollars (£225) and to be deported from Japan. The assessors dissented, on the ground that the Japanese evidence was falsified to order, and that the prisoner was in their opinion innocent of the charge on which he was tried. In consequence of this dissent the judgment had to be referred to the Minister, who added to the consul's sentence three months' imprisonment in Hongkong, whither the culprit was conveyed in a British ship of war. After a week's incarceration in the Hongkong jail the warrant for imprisonment was found defective, and Mr Moss was released. He was then advised to bring an action against Sir Rutherford Alcock in the Supreme Court at Hongkong, which occupied twelve months, and ended in a jury awarding damages against the Minister for false imprisonment, that being the only part of the sentence which could be brought within the jurisdiction of the Hongkong court. As regards the original sentence of fine and deportation, the Foreign Office, by advice of their law officers, had long before quashed the conviction and ordered the fine to be remitted.
A parallel case had occurred in Canton in 1846. Sir John Davis instructed the consul there to levy a fine on a British subject for an alleged offence. Whether just or not, it was illegal, and on appeal to the Supreme Court in Hongkong, of which colony Sir John Davis himself was governor, the judgment of the consul was reversed, and the fine of 200 dollars refunded. Even Sir Frederick Bruce, with all his circumspection, did not escape falling into the same error with regard to the division of legal authority between himself and the Supreme Court. "From a careful perusal of ... her Majesty's Order in Council," he writes, "the chief superintendent of trade [himself] in cases arising under this section is the Supreme Court in China: it is for him to prescribe to the consul the course he is to pursue, and the Supreme Court at Hongkong cannot interfere in such matters." Her Majesty's Government, however, replied: "You fall into an error by confounding two distinct questions.... You are mistaken in treating the question which you have referred to them for decision as depending upon the 4th and following articles of the Order in Council," and so on. So that had it fallen to his lot to give a decision involving a penalty, he would have been sued not before himself, but before the Supreme Court at Hongkong, and would have sustained the same reverse as Sir Rutherford Alcock had done.
These bald facts of the case supplied a striking illustration of the vices of the consular court system, which was in vogue in China for twenty years until the establishment of the Supreme Court for China and Japan in 1865. Consuls were called upon to exercise judicial functions, and Ministers those of Courts of Appeal, without the slightest preparatory training, and as often as not without natural aptitude. In criminal cases they were at once prosecutors and judges, it might even be executioners as well. The state of conflict in which they lived with the native authorities, of whom they were accustomed to demand in vain the punishment of malefactors, placed British officers under continual temptation to prove how promptly they could bring to justice their own nationals accused of offences against the natives. This idea of giving object-lessons to Chinese and Japanese pervades the consular and diplomatic records. English officials seem to have been oppressed with the reflection of what the natives would think of the failure of justice in any particular case, and they were ever apprehensive of political dangers or embarrassments as contingent on misunderstood lenity to "white men"—natural and proper feelings on the part of mere political agents, but quite foreign to the administration of justice according to the rules and maxims of civilised nations. It seems not unlikely that the obvious lessons of the Moss case itself as to the incompatibility of judicial and administrative functions, and the unfair responsibility which their combination threw upon the consular and diplomatic officers, hastened the realisation of the scheme of an independent judiciary which was so strongly advocated by Sir Rutherford Alcock in 'The Capital of the Tycoon.'
These various incidents, and sundry vexatious restrictions imposed on them from time to time for their own security, no doubt disposed the residents to look askance at many acts of the Minister, the reasons for which failed to impress them. But though the surface of the relations between the Minister and the merchants was thus perturbed, and regrettable, in the common interest, as the lukewarmness of personal sympathy may have been, the residents never failed in their respect for the high and sterling qualities of the Minister, and the courageous manner in which he fought for his country's interests. It only needed an emergency to give definite expression to this feeling, and no testimony could be stronger, more genuine, or less conventional than the farewell addresses in which the merchants of Yokohama and Nagasaki summed up the brilliant record of a man of whom they never ceased to feel proud. Instead of detracting from the value of such spontaneous testimony, the minor differences only lent emphasis to it, and set the seal of deep conviction on what in an ordinary case might have passed as the language of mere compliment.
As shooting has been alluded to as an occasion of trouble, a word or two on the subject of this amusement may have an interest for certain readers. To the Japanese the pursuit of game seemed to be as strange a form of sport as the other vagaries of the foreigner. Firearms were not in use with them, cold steel being the regulation weapon of offence. There was a tradition that the discharge of firearms within twenty-five miles of the Tycoon's palace was prohibited by law,—what law or how promulgated was never clearly made out, though the motive was intelligible enough. For whatever reason, such game as there was in the country had evidently not been disturbed; the pheasants were not wilder than the English stall-fed variety. Small shooting-parties were in the habit of going out for a day, or half a day, from Yokohama and Kanagawa with dogs and native beaters among the coppices where the birds lay. The country itself was so charming to walk or ride over, the peasant-folk were so polite and merry, that heavy bags were not needed to attract sportsmen. Still, a good shot with industry and a shrewd acquaintance with the habits of the game could often get several brace of the splendid green pheasant of the country (Phasianus versicolor) in an afternoon; while at rarer intervals the finger would tremble on the trigger as one of those magnificent birds called locally the "copper" pheasant (Soemerring's), with tail feathers as long as a peacock's, would rise from the furrows and sail grandly into the impenetrable thicket. Objections had been taken by the Japanese officials to this form of amusement, because it was not the policy of the rulers to familiarise the people with the sight of firearms, still less to facilitate their acquiring them. In accordance with representations from the authorities, the British consul had requested his nationals in 1859 to desist for a time until some arrangement was come to. This they did, but in the following season resumed the sport, in which there were no keener participants than the British consular officers. A contemporary writer in September 1860 thus refers to the return of the shooting season: "There being nothing to do, we are all looking forward anxiously to the 1st October, on which day the first onslaught on the feathered race takes place. The weather is now hot, but we are all in very good health.... We live in a beautiful country, among a civil, amicable, kind-hearted, and intelligent people. We can roam over the country without let or hindrance." It is curious to note by the way how tenacious the Englishman is of the punctilio of his game laws, carrying his observance of them into countries where he and his laws are alike strangers, and where in many cases the principles are not applicable to the local conditions.
A new element in the sport appeared with the advent of cold weather, in the form of flocks of wildfowl, chiefly geese, which spread themselves over the low-lying grounds, mostly at some miles distant from the settlements. They were "geese," indeed, quite unsophisticated, having no fear of man before their eyes—inherited instinct apparently at fault. "Their tameness was shocking" at first, but they wonderfully soon learned to be wary with a foreigner and a gun. The morning's bag of one early riser, riding six miles and back to a nine o'clock breakfast, late in November, dwindled rapidly from 12 to 6, 4, 2. The birds were shot within 200 yards of the tokaido, and in full view of many curious spectators, armed and unarmed. Men were hired on the spot to carry the game along the six miles of highroad and through the long street of Kanagawa, the whole proceeding, in short, enjoying the utmost possible publicity.
The unfortunate Mr Moss, however, a few days later, toiled a whole day and bagged one, with the consequences we have seen. Whether it was law or not, the evidence supplied by the birds themselves of prescriptive immunity from gunpowder attack was overwhelming. Hitherto the heavy winged wildfowl had felt safe so long as they kept out of sword-range of the human biped, but the new experience of a detonating missile fatal at fifty yards broke up in a week the habits of generations, and forced them to promptly readjust themselves to their environment.