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Mr Francis: That is a publication by Mr Jackson, not by Mr Pitman.
The Chief Justice: But the handwriting being proved, a publication is proved by Mr Pitman.
Wednesday, June 9.
On the Court being opened,
Mr Francis continued his argument as to the question whether Mr Hayllar could or could not reply.
Mr Francis summed up his argument on the two portions of the letter, and The Chief Justice complained of the quoted authorities which he desired manner in which Mr Francis had quoted his Lordship particularly to regard in some of his authorities and also for having framing his directions to the jury. In flatly contradicted the Court; and than Summerville and Hawkins It was laid down decided that Mr Hayllar had a general right to reply; adding that Mr Hayllar need not address the Jury on the question of privileged communication, as he had made up his mind what he was to say to the Jury on that point. The libel must not only be false but be written, the writer knowing it to be false.
Mr Francis next quoted the case of Canfield v. Whitwell (18 Law Times, 627), in which case the plaintiff was nonsuited as no express malice was shown. In Cook v. Wise, Hart v. Gumpach and other cases into which the learned Counsel entered, the same rule was observed.
His Lordship, asking Mr Francis as to the sandbank Mr Pitman had raised for himself in the last clause of his letter,
MR BAYLLAR REPLIES,
Mr Hayllar then replied. He maintained that the reason why they were there was that Mr Pitman had attacked his client in his professional character, the very points on which a man holding Mr Nelson's position was most sensitive—that particular opening where the thrust passed through the joints of the harness.
Mr Francis had very ably and ingeniously argued that his defence mainly rested on the fact that the letter was a privileged communication; but as His Lordship had already intimated that he had made up his mind on that point, he would merely make one or two observations suggested by the piece of evidence put in by the defendant's Counsel. Mr Nelson, at a public meeting of the Chamber of Commerce on 23rd February last, when the subject of discussion was the introduction of the Japanese yen as a coin, made some remarks, in which he referred to Mr Pitman in certain descriptive terms, Whether these terms might have been less scathing, less ambiguous, or less sarcastic, it was not for them to consider. The remarks were made by Mr Nelson in his public position upon a question which was fairly before the meeting, and which had a peculiar interest to his client as the manager of a Bank, it was of importance also to the Chamber, this introduction of a new coin; and the allusion was in reference to a memorial which had been presented to the Government by certain people, including some Chinese.
Mr Nelson was commenting upon that fact at this meeting of the Chamber of Commerce, and he put this consideration, whether the memorial alluded to expressed a genuine want whether it was forwarded in compliance with the wishes of certain people. This was a perfectly legitimate subject of comment and a very legitimate thing to do; while it really conveyed no charge of moral obliquity against Mr Pitman.
To say that the defendant was "well known" was not libellous; and to state that he was in the employ of the Japanese Government was, if true, an honourable circumstance, as the defendant would be a colleague of some of the first men who have come out to the East Mr Lay and many others.
To say, again, that defendant was more or less mixed up with the Opium Farm was no intimation of discredit one way or other; and to state that he was on intimate and friendly terms with the Governor surely implied no reproach.
This was said to be a gibe, but if they looked at it carefully, the jury would find that it was not so. Here was Mr Pitman, in the employ of the Japanese Government, who were the persons seeking to introduce the yen here; that made it important, and furnished a sound and proper reason for the comment.
Besides, defendant being on intimate and friendly terms with the Governor would naturally give importance and weight to it any representation from an intimate friend must weigh with any human being, whether the Governor or other.
Then, again, there was the charge brought by Mr Pitman against Mr Nelson was altogether different from that brought by Mr Nelson, in that it involved the greatest moral obliquity.
No doubt that part of the letter about Mr Nelson's public conduct, had it gone home, would have been regarded as so much rhetorical fustian; but that containing the private attacks the Directors would have been bound to notice, involving as they did high moral obliquity on the part of Mr Nelson as a servant of the Bank, and giving him, as they did, the worst character as a servant that could possibly be given.
As to closing the mouth of the defendant, he admitted that in a general sense this was to a certain extent true.
But the value of the argument depended on the nature of the charge made. Those charges which rested entirely upon the evidence of others, how could Mr Pitman prove? Regarding the inquiry as to the transaction in Mr Fleaton's case, which was nothing more than hearsay, there was the highest probability that Mr Pitman could know nothing.
Whether defendant's mouth was closed or not, was of no importance, as Mr Pitman in any case could have said nothing about it.
As to Mr Nelson being often so with public men, though it did not make the comment the less fair—the result depended on the idiosyncrasy of the man thus bit.
By way of defence or self-vindication, however, defendant need not have sent a letter that was not likely to be published.
There were two obvious courses which he might have adopted—first, a letter to the Chamber of Commerce, calling attention to the words and denying the false assertion; or clearing himself by writing to the newspapers, the subject having gone before the public.
Defendant, however, sends not a public but a private letter, thus indicating clearly that he intended it as a counter-attack, containing as it did many serious charges.
Mr Hayllar said he would be able to deal with them he thought very satisfactorily to-morrow morning.
Some discussion arose as to the right of Mr Hayllar to reply.
The Judge held he had the right to reply as the defence had put in evidence, and on the authorities cited.
Court adjourned till 10 a.m. to-morrow.
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Mr Hayllar then said that the again,
His Lordship's intimation on the point of privilege took away the necessity of his going further.
His learned friend had most properly (in-deed he could not quarrel with Mr Francis' course of defence, though one or two things, say perhaps that about the China Mail, had better have been left unsaid)—alleged that by taking criminal proceedings the prosecutor had done two things, viz, he had shown a vindictive spirit, and he had closed the defendant's mouth.
Now one was not generally supposed, when one has lost any piece of property or an attempt has been made to carry it away, to be vindictive when he called in the services of the law; and yet nothing so dear or so valuable to a man as his character.
The charge brought by Mr Pitman against Mr Nelson was the charge of having got up the memorial, which might have a great variety of meanings.
It did not say that the signatures were false and spurious; but a man might possess that power of argument and fascination to induce others to sign such a memorial, and if so, it was all the better that was a perfectly legitimate thing to do in politics, to any one interested in such a matter, to get up a memorial on the subject.
Read calmly, therefore, it would be seen that the speech of Mr Nelson did not call forth the denunciation of the defendant, and a consideration of what was really said would not, if left to Mr Pitman's better judgment, have elicited such anger as was embodied in the letter.
Mr Nelson was opposed to the scheme of the yen; and he hit at the spontaneity of the memorial, which was the real object aimed at.
It was due not only to Mr Nelson but to Mr Pitman to put it thus to the Jury, for no man wished to stand forward as making a wanton attack on any one—that was not desirable.
If the Jury would look at this communication of Mr Nelson's in this fair way of reading now put, even then it no doubt wounded and rankled; but this was as with public men, though it did not make the comment the less fair.
As to Mr Nelson being "a regular trafficker in shares," Mr Pitman was neither a sharebroker nor a banker, and he could therefore have had to depend upon the evidence of others to show, by an analysis of Mr Nelson's conduct over a long period of time, and a great variety of transactions, that the prosecutor was such a man.
Mr Francis said that was consistent with, but did not prove express malice.
The circumstances were equally consistent with malice and its absence.
Unless there was a substantial and preponderating balance of evidence of express malice, it was laid down that his Lordship withdraw the case from the jury and direct them to return a verdict of not guilty.
He referred to several cases in which the writers were volunteers more or less, including Davis and Sneed, and Coxett and Richards, in which latter the mate of a ship wrote to a friend stating that the captain was given to drinking.
This friend was only slightly acquainted with the owner of the ship, but informed him of the contents of the letter and it was held it was a privileged occasion.
He left the case in his Lordship's hands, asking that it be not sent to the jury, as there was no evidence of express malice.
It was now six o'clock, and his Lordship called Mr Hayllar's attention to the pile of books around him.
Mr Hayllar said he would be able to deal with them he thought very satisfactorily to-morrow morning.
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