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The Duke of Wellington at his Club, for instance, was not a good subject.
The Chief Justice: If he had said it was for the public good that Mr Nelson should devote his whole time to the affairs of the Bank, and could have shown it, which is a very different thing, it would have been entirely different.
not only addressed his charge to his clergy, but sent copies to the local papers. It was decided, that quite apart from the question whether what he alleged in his charge were true or not, he was justified because he had acted in self-defence, because what he had said was in answer to an attack first made on him by Mr Laughton, that the occasion and communication were privileged. Now he came to the third and fourth parts of the letter. His learned friend had admitted that were there a word of truth in any imputation that may have been made, as to the propriety of certain transactions between Mr Nelson and Mr Heaton, or with regard to his traffic in shares generally, Mr Nelson would be unfit for the position of high trust he held here. His learned friend therefore admitted that it was for the benefit of the public that such a discussion or enquiry as Mr Pitman's letter suggested should take place.
He should ask his Lordship to direct the jury that the Chartered Mercantile Bank was a public institution, chartered and privileged in this Colony; its Managers publish accounts not merely for the shareholders, but for the public, and they were circulated all over the world. He submitted that the proper management of the local Branch of that Bank was a matter of public interest to every person who might be a depositor, who might hold the notes of the Bank, or who was in any way interested in the trade of this Colony; he was interested in seeing the Bank prosperous and seeing that its local Branch was properly conducted.
Mr Francis continued to urge the point of the public acts of a public man, the head of a public Institution, being a fair and proper subject for public discussion. He put it that it would have been quite lawful and proper for anyone in the beginning of 1879, when there was almost a panic in the Colony in consequence of over-speculation in shares, when numbers of persons were ruined, when there was very great depression in the Colony, when so many then and in the latter part of 1878 were wrecked on that over-speculation, it would then have been a perfectly fair question for discussion, to be initiated by anyone in the public press or by the editors, whether the managers of any of the public Institutions in their midst had taken part in that disastrous speculation which was simply nothing else but gambling on a gigantic scale.
The Chief Justice remarked that what Mr Francis said about the Laughton fair matter for public discussion. Every member of the general public was so far interested in this question that he was entitled to discuss it. The editor or proprietor of a newspaper had no more privilege in such a matter than any gentleman in the box or anyone outside.
Mr Francis said he submitted that they were criticisms only of Mr Nelson as the manager of a Chartered Bank, which he submitted was a public institution, the public acts of its manager being a fit subject for public discussion.
The Chief Justice said, the learned counsel must connect the acts first with the public capacity of the Bank Manager. The General at the head of his army, the Admiral in command of his fleet, the Bishop in his diocese, or the Judge on the Bench, were proper subjects for public criticism, but their private acts were not so amenable and their discussion would not be justified.
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on his own account, And if it was a question for fair discussion by the public, it was much more a subject for the directors who had it in their power to put a stop to it. Mr Jackson, to whom this letter was addressed, had it in his power to report this matter to the directors, it was his duty in the first place to look carefully into the matter and to report it to the directors.
What had Mr Pitman done? He had not, as he might have done, rushed into print with his views on this subject. He had not talked all over the town about the matter, but he had written a letter about it to a gentleman just arrived a couple of days before, who had the right and power to enquire thoroughly into this matter, and see whether there was anything wrong about it.
With regard to the charge of buying and selling shares, which was simply what trafficking in shares amounts to, being simply suggested to Mr Jackson, and through him to the Directors of the Bank, whether it was a right and proper thing for the Bank to allow their manager here to do. Mr Pitman bona fide believed that it was a fair subject for discussion, for consideration, and for enquiry.
That being so, and he having addressed the letter only to Mr Jackson and to the Board of Directors, he contended that it was no libel, the writer being privileged in communicating with those parties who were interested in the subject matter.
He went to those who were best able to know their own business, and simply called their attention to the wisdom of considering the question; whether their agent should devote his whole time to the interests of the Bank and not engage in outside transactions.
The Banker's confidential position, the trustee to some extent of the depositors, the financial advisor of half the people of the Colony, cognisant of the affairs of all the customers of the Bank, should be allowed to deal in shares and do other business outside the Bank,—that he should make such a suggestion could not be taken in any way as a libel.
Mr Pitman was interested in the trade of Hongkong and Japan, he was connected as advisor with the opium farmer, and as a resident here he was interested in the subject matter of the letter and was fully entitled to the benefit of privileged occasion.
Mr Pitman was privileged in the letter he wrote if he believed it was true and apart altogether from the question whether it really was true or not.
In justice to Mr Nelson it was only due to Mr Nelson to say that so far as Mr Pitman knew, so far as anybody knew, whatever transactions he had with Mr Heaton there was nothing whatever in them, so far as they knew, to reflect on him in the slightest.
It was not their intention to justify what would be the insinuation of that passage in the letter. But he defended that portion of the letter because Mr Pitman honestly believed it at the time to be true, and regarding Mr Nelson as the manager of a public Institution bound to put it before Mr Jackson, and Mr Jackson only, believing it to be Mr Jackson's duty to enquire whether there was anything in it.
He admitted that there were certain passages in the letter defamatory, but for these he claimed privileged occasion.
The question whether the occasion was privileged was one for his Lordship, and it was for the jury to say, if this was a privileged occasion, if there was that proof of express malice which took that privilege from him.
First, however, there was the preliminary question whether there was or was not any evidence to go before the Jury as to the malice or otherwise of the writer.
There was, he contended, no evidence on the matter.
The letter was not, he submitted, one that had been written to make mischief but a bona fide business letter suggesting certain enquiries in the interest of those to whom he wrote.
He suggested nothing wrong or irregular in Mr Nelson's conduct as Manager of the Bank.
Mr Francis then referred to the authority of Starkie on qualifiedly privileged communications, p. 508, where legal, social, or moral duty called on them; that privilege covered the letter to Mr Jackson which Mr Pitman wrote, it being his interest and his duty, according to his view to do so, with the belief he had in him as to the truth of what he wrote.
Even if Mr Pitman were a volunteer, even then he was in the same way protected. If he believed in the truth of what he stated he was entitled to a verdict of not guilty.
He quoted from Starkie again to show that express malice had to be proved; it was not sufficient that the balance be even; there must be more evidence consistent with the belief that he is guilty of malice than that he is innocent before the question could go before the jury.
In addressing his arguments with authorities more particularly to his Lordship with whom the question lay, Mr Francis referred to the letter as a confidential communication.
His Lordship could see nothing of that nature in the letter. It was not marked private or confidential. He had written many letters which had been published at once.
Mr Jackson showed his appreciation of its confidential nature by handing it over to Mr Nelson,
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