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But to consider only the matter as it came before them there to-day; that was he did not card on it and asserts that it is true. In a civil action the defendant could go into the witness box and give to the jury and to the public his explanation of the whole matter from his own mouth, and he would especially have been able to tell them why he had said this and on what foundation he had based it, how he had ascertained it, and it would have enabled the jury to judge between himself and his opponent, in these criminal proceedings the defendant was completely shut up, he could not make a single statement to the jury, nor was he as the Counsel for the defendant allowed to tell them anything his client had told him nor any explanation he had given him of his conduct. One would think that if Mr Nelson had been so extremely anxious as counsel had represented him to be to clear his reputation and to vindicate his character that he would have adopted that method which in every possible view of the case provided the most thorough and complete mode of clearing his character from every aspersion that had been cast upon it.
Instead of doing so he adopts this course of proceedings in which he shuts the mouth of the defendant entirely; he seeks not only a complete clearing of his character, justification as would have been given him by a verdict in a civil action, but zealously seeks vindictive punishment which would bring no satisfaction to him, the vindictive punishment of the defendant. If he had to illustrate, as he would have to do later on in his speech, the two terms of law, malice in law and malice in fact, he did not think he could find a better illustration than in these proceedings. While the action which Mr Nelson had taken in this matter was not malicious in point of law he could not be acting in malice in exercising a right which the law gave him he thought he might fairly say it was a malicious proceeding, vindictive in point of fact, a course not adopted by a man who merely wanted to vindicate his character before the public and his superiors, to clear himself from aspersions that had been cast upon him, but who vindictively desired to see the defendant punished.
The whole foundation of what he might call this antiquated form of proceeding with reference to scandalous and defamatory publications with reference to any man were calculated to lead to a breach of the peace. When they were entirely false. In bringing a criminal charge and that under Lord Campbell's Act, as he had done, the prosecutor disposed of himself entirely from the necessity of giving any evidence whatever of the falsehood or truth of the charges against him.
When men carried swords they set their characters right on their sword's point. When the swords ceased to be carried there was a reference to the laws of honour; that honour outraged there was a challenge and an exchange of shots. But the whole system of duelling had departed; the whole system of personal vindication of outraged honour had dropped into disrepute. Even the later remedy, the resort to the horsewhip had gone too, it had been ridiculed and laughed out of existence, and received its final death blow in the recent case of Labouchere v. Lawson.
There was not the least danger that this alleged libel said to have been perpetrated by Mr Pitman would have led to a breach of the peace; none whatever. But Mr Nelson came forward now to vindicate the majesty of the law and to prevent himself from avenging himself and inflicting one of those fine days, an assault on the carcase of Mr Pitman, he comes forward and in the name of the law brings this charge criminally.
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Mr Francis: Not the least doubt about it.
The Chief Justice: Whether the Court would take notice of it is quite another thing. I do not know that I should be ready to do anything of the sort in a case like this. Was that only on one side! Was there only one paper that did that?
Mr Francis: One newspaper, my Lord, the China Mail, has been conspicuous, and has given prominence to the fact whenever it has mentioned the case that Mr Pitman was liable to a year's imprisonment and fine. Referring again to the fact of Mr Pitman's mouth being shut under this mode of proceeding by criminal prosecution, he remarked that the statement that had been made that the reason for the criminal prosecution was to be found in the document itself could not but recommend itself to him as a very extraordinary statement. It was an attack on Mr Nelson's private character with deliberate intent, they were told, to irretrievably ruin him in his business.
If this were so, why did he not take those proceedings which would vindicate his character and compensate him for his injuries instead of bringing these criminal proceedings, which could secure neither the one nor the other, compensation nor vindication. The jury in this case were not to enquire into the truth or otherwise of the charges Mr Nelson was so anxious, they were told, to free himself from, and could therefore give no deliverance on the matter; so that any person who chose to believe that there was truth in these imputations was left quite at liberty to do so, because their verdict did not and could not in any way settle it.
Now, he asked the jury to consider with him this alleged libel, and he had to say at once, after taking into consideration what fell from the Bench, that he did not know if Mr Francis could say Mr Nelson and his friends were responsible for a more extraordinary proceeding than the case had in which the papers in the case copied out verbatim and produced and reproduced. He did not know who furnished those documents; they had not been furnished by him (us), and he hoped they had not been furnished by the officers of this Court.
The Chief Justice: If the documents in the proceedings of this Court are published while proceedings are pending, it is a clear contempt of Court.
Mr Hayllar did not know if Mr Francis was wrong in describing the China Mail as a friend of Mr Nelson's, but certainly a more extraordinary proceeding than the case had been seen; the papers in the case copied out verbatim and produced and reproduced. He might perhaps be wrong in describing the China Mail as a friend of Mr Nelson's, but it was hardly possible to justify the defendant on the ground that it was entirely out of his power to prove that they were true. They could not plead any justification for this libel, if it were a libel.