01 : (28) to things locally, not being able to watch a man's character and judge it by his daily doings, should be ready naturally to accept the word of a person who, according to his own statement, occupied a position of such credit and respect in this colony that he had been for fifteen years the respected friend of His Excellency the Governor of the Colony. That was a public matter, and if these facts alleged against Mr Nelson were true, if they could be supported in the letter or in the spirit, he admitted that it would be a matter, considering the circumstances of this colony, which it would have been for the public benefit to have inquired into, because it would be a matter of very considerable public importance in this colony, if a gentleman occupying Mr. Nelson's position were not fitted for it.
A man occupying that position spoke under a heavy responsibility; as a man whose lightest word would be entirely accepted. That was the position Mr Pitman took up in this case, and he made against Mr Nelson a charge which, if true, must have ruined him, which might have led probably but for peculiar circumstances would have led, to his being suspended according to the rules of the Bank, and which according to common sense, would have shown him to be a person utterly unfit for the position he occupied, and would necessarily have led to his recall. The rules of the Bank were just the rules of all banks and of all institutions of the kind, and therefore it behoved a gentleman in Mr Nelson's position, who had a charge of this kind made against him, not to labour under it, not to come forward and have a salve for it by means of a pecuniary compensation, but to come forward and vindicate his character, to place himself before a jury and have the matter publicly investigated, so that no stain of these charges might rest upon him.
While that was the position which Mr Nelson had invited and was ready to occupy, it was not now precisely the position which Mr Nelson did occupy, and he would explain why. Up to within comparatively a few years ago, well within his Lordship's recollection, no justification on the ground of the truth of a libel could be pleaded by a person involved in a criminal charge. It was a harsh state of the law which the judges did their best, no doubt, to modify. They clipped it here and clipped it there, until there were a great many decisions on the books in which, under certain circumstances, certain portions of the truth might be admitted.
Then Lord Campbell, who, as everyone knows, was one of the most eminent lawyers that ever sat on the English bench, caused the passing of an Act by which it was now open to any defendant accused criminally of libel, to plead the truth, to inquire into the truth, to give evidence of the truth, and to investigate the charges which had been made in the libel, investigate them down to their very roots.
That formed a long struggle, and it eventually, after a good many conflicting decisions between arbitrary power and the voice of the people, was decided by a statute, which he need not call before them, it was so clear it needed no argument; that it was for the jury to decide whether any given libel is a libel or not, and the function of the Judge was confined to explaining what a libel is, merely laying down the law on the subject; it was then for the jury having the document in their hands to say whether it was a libel or not.
Another element which might be introduced into the case, probably would be introduced, was this, whether this libel was written on a privileged occasion. What was a privileged occasion was an exceedingly important point, and under the direction of his Lordship and using them as his own words he would read a passage from a standard work so that they might have it clearly in their minds what a privileged occasion was.
The learned counsel then read the following from Starkie, p. 790, 1869 edition; "There exists an important and numerous class of cases, in which the law, consulting the general convenience and the exigencies of society, extends a qualified protection dependent on the question, whether the party has acted bona fide on an occasion recognised by the law, or has merely used the occasion as a colour and pretext for doing mischief.
This most important limitation seems, on principles of public policy, already adverted to in discussing the grounds of civil liability to extend to all publications made in the fair discharge of any public or private legal or moral duty, of which the ordinary exigencies of society, or the party's own private interest, require the performance.
This principle seems to comprehend all publications on subjects of general and public concern, in which the author possesses an interest in common with the rest of the community. Every one, as it seems, has a right to publish that which, in his opinion, will tend to enlighten, instruct, or even amuse mankind; he who attains his object may justly be regarded as a benefactor to society, he who fails is not amenable as a criminal, however erroneous his views may be, unless it plainly appears that his real object was not to improve or benefit mankind, but to produce public mischief and disorder by alienating men's minds from their public or private duties, by base or unworthy means, by destroying their religious faith, corrupting their morals, or instigating them to acts of sedition, tumult, and outrage, or to some other violation of the peace."
That paragraph summed up to a certain extent a somewhat large branch of law. For instance, if a person gave a servant a bad character, in words which were libellous, if the character was not given in such a way as to amount to special malice, the occasion was privileged.
Again, persons might, as everyone knows, publish reviews or criticisms in the strongest language upon public men in their public acts, so long as they did not publish them in such a way as to show malice.
There were a number of other cases in which it must occur to everyone that plain speaking being clearly for public benefit was not to be held as libellous, as when a bad or immoral book was criticised in the strongest terms.
These were some of the cases in which the publication of libellous matter was privileged and that privilege formed a defence. But when they came to look at the case that was now before them, he would submit that when this letter was published there was no privileged occasion.
Mr Pitman, so far as he knew, was not a shareholder of the Bank, was not interested in it at all, and the words and expressions he used were not intended to bring down on Mr Nelson's head a public punishment, but a private punishment.
The law on malice, as laid down over and over again, was this, that every man must be taken to have contemplated the reasonable and probable results of his action.
It was laid down emphatically by one of our greatest judges in a case of libel, the case where Sir Francis Burdett was upon his trial many years ago, (4 Baron and Alderon). The deliberate publication of a calumny which a man knew to be false or did not know to be true, raised, in a plea of not guilty, a conclusive presumption of malice.
The clause under which this prosecution was instituted was clause 5 of the Act 6 and 7 Vic., cap. 96, which had been extended to this colony. There were two clauses, one of which was "If any person shall maliciously publish any defamatory libel, knowing the same to be false," and the other enacted that "If any person shall maliciously publish any defamatory libel."
This charge was not for publishing a libel knowing it to be false, but for publishing a defamatory libel, and not caring whether it was true or false, not taking the trouble to ascertain if it were true.
The question of the truth was not in issue before the jury; it was a defamatory libel, defaming Mr Nelson, whether the writer knew it to be false or not.
Reading the letter they had simply to say whether they were satisfied that it was a libel on Mr Nelson, and that it was published without caring whether it was false or not, and they were satisfied he must have contemplated the probable consequences of his acts, namely, the dismissal of Mr Nelson.
(29)