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Mr Francis made a strong protest against italics in full in the above copy. Mr Hayllar contended that extracts from the letter should be made and wrapped up in the very artful language of libellous innuendoes only set forth as the first of these two especial paragraphs provided by the authorities he had quoted. He asked,—what did this dark charge mean, Mr Hayllar went through the letter paragraph by paragraph and sentence by sentence, giving the phrases which are italicised as those containing express libels. The first was that which characterised Mr Nelson's speech as false and slanderous. The phrase "impertinent remarks" might also be stated as libellous, he said, in reply to Mr Francis.
Mr Francis: Is it such as to give grounds for proceedings?
Mr Francis pointed out that the transfer of shares which was said to have taken place from Mr Heaton's estates was spoken of as having been made on the eve of his (Mr H's) embarrassments. Mr Heaton was alive then.
Mr Hayllar: It is a most base insinuation. It is not the charge of a man who can come forward openly and speak the truth and be put on his oath, but the hand of the assassin who strikes in the dark.
Mr Francis: Where is the libel? What innuendo do you put to that paragraph?
Mr Hayllar: I think it is; we shall see. The reference to Mr Nelson's animus he distinctly charged as a libel. The reference in the end of the 2nd paragraph repeated the libel about falsehood and slander. The continued reference to Mr Nelson as acting "again in his capacity as the Manager of your Bank" showed that it was an attack calculated to injure him in the employment by which he earned his livelihood. It spoke of his public acts, of his acting in his office of local Manager of the Chartered Mercantile Bank, and described his acts as unworthy of his position; not only reflecting discredit on the Bank and on his rule here, but so gravely reflecting on the Bank that it would be right, it was the duty of the Bank to protect itself against the discredit reflecting on it as an institution by such conduct as that of Mr Nelson.
Mr Hayllar: That paragraph means, if it means anything, that on the eve of Mr Heaton's embarrassment Mr Nelson obtained something dishonestly. That is what it seems to my mind to mean and to be intended to mean. Looking to the letter as a whole, Mr Hayllar showed how it led up to this conclusion. From unworthy public acts it led up step by step, by the incessant and unutterable hostility to the Governor and the other charges, he desired to make Mr Jackson and the directors believe that there was something dark behind, which the directors had better enquire into, about the estate of an embarrassed man who is since dead.
Mr Francis: Is that libellous?
Mr Hayllar: It is.
Mr Francis: I thought that would have been taken as a letter of recommendation, and that it was for the public protection that this publication was made. That was a charge Mr Nelson was quite ready and willing to meet when the time came.
Mr Hayllar: I hope not. With reference to the latter clause of the paragraph about the friendship the defendant has had the honour of enjoying for the last 15 years.
Mr Francis asked if that was a libel. Mr Hayllar was not prepared to say. Mr Francis: Is it a libel to say it is enjoyed?
Mr Hayllar did not charge that as any particular libel. He proposed to show, in going through the letter, the whole animus with which this thing was done. It was not necessary to go outside the letter itself to prove that.
Mr Francis: Had he been so anxious to meet it, he would probably have adopted another course of proceeding.
Mr Hayllar, with regard to the second paragraph given in italics in the letter, said this was still pointing at the mysterious charge. There were various styles in this letter. We now left the mysterious artful and came to the innuendo. (Clause read). "Regular trafficker in shares" was a strong expression. Had he merely said that Mr Nelson was a regular trafficker in shares, that might have been a question whether it was libellous or not, but when he went on to say that Mr Nelson was so occupied with his trafficking in shares that it was a question whether he could devote his undivided attention to the Bank, it was distinctly libellous; it spoke for itself.
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THE DEFENDANT COMMITTED TO THE SESSIONS.
Mr Francis submitted at some length that there was nothing on the face of the letter defamatory. Certainly there was nothing defamatory which justified a criminal prosecution. It was simply a letter of expostulation addressed to the superior of a man in a public position as to his public acts. The gentleman to whom it was addressed had come out here to inspect the working of the branches and was therefore one to whom such a letter of expostulation and suggestion might properly be addressed. There was, he submitted, nothing wrong or improper in it.
Mr Creagh: Unless I am satisfied that no jury would convict in this case I am to send it to the jury. Whether any charge made against a man is libellous depends, I fancy, a great deal upon the Society in which he lives.
Mr Francis: But that was where it was shown that it would be highly injurious to a man's position to have it said of him that he poisoned a fox. We have had Mr Jackson here, who has told us that it would not harm Mr Nelson in any way to have it said of him that he trafficked in shares. He could do so as much as he liked; Mr Jackson had done the same himself, he admitted.
The Magistrate: Mr Jackson was only examined on the two paragraphs; now we have the whole of the letter, regarding which he could say nothing at all.
Mr Francis remarked that if only the cases in which no jury would convict were committed there would be no acquittals in the inferior Court. He submitted, and quoted authorities to show, that His Worship must believe that there was a prima facie case for a criminal prosecution disclosed.
The Magistrate remarked that there was the Attorney General as Grand Jury between this Court and the Sessions. He (the Magistrate) had the right under a local ordinance to send any case to the Jury.
Mr Francis said no local ordinance could give His Worship the right to do what was illegal. The law was that the Magistrate must hold that a prima facie case had been made out.
Mr Creagh: I have the right to send the case for trial and I am to do so, and I am not bound to give you any reason.
N.
404