( 46 )
IN MITIGATION.
The Chief Justice referred to the words before the Court as a charge of gravity.
Mr Hayllar said they simply put the case.
The Chief Justice: If it had been a civil action it could have been damages-one farthing.
Mr Francis called the attention of his Lordship to the letter addressed by Messrs Brereton and Wotton to the plaintiff's solicitors, withdrawing the letter on which this charge was founded.
"Intimate and friendly terms with the head of the Government in Hongkong" &c., &c.
The Jury returned, after an absence of about twenty minutes, and gave in a unanimous verdict of Guilty.
The Jury would have to find what was covered by these words, and whether they did or did not contain an imputation of some kind on the defendant. He regarded Mr Nelson's speech as an able gibe. Was that there had been nothing wrong in Mr Nelson's share transactions, either with the late Mr Heaton or generally, and that there was nothing by which they would justify, there was no desire to attempt to justify, there ing rage. The Chamber had also, by these references, embodied the speech in its official report, sanctioned if not adopted it; and He did not know that was a very graceful admission on the part of Mr Francis, the gibe rankled until Mr Jackson, the Bank Inspector, arrived. These circumstances raised the question of set-off, however, to the effect that any individual who takes his ground on the arena of public life ought to confine himself to the arena chosen, and there reply to his opponent; and that the Judge Kenyon was disposed to let them fight it out-a remark which is Lordship regarded as full of good sense.
The current of modern decisions led to the conclusion that there can be no set-off of one libel against another. They could not read the speech so as to balance accounts in this way; and the speech did nothing to justify the insinuation complained of. It would have been very different if he had said then that there was nothing to entitle the defendant to plead not guilty.
In estimating damages that might be taken further. I intended it to do so. I made Mr Francis: What I said yesterday goes into consideration: but, as Justice Blackburn had said, though civil and criminal proceedings were similar, even in a case where the plaintiff had committed a libel greater than that complained of, the Jury would not be at liberty to return a verdict of not guilty on that ground alone. In an action it would go greatly in mitigation of damages. It was for the Jury to say guilty or not guilty; the measure of punishment rested where he wished it to do.
His Lordship said he would much rather not have it so.
His Lordship then explained to the Jury what a defamatory libel was. The defendant had not pleaded any special plea, and had thus narrowed the limits of the inquiry. It was for the Jury to say whether the alleged libel was a libel, as, since 1793, every Englishman must now be convicted only by his peers; and any one who knew English history previous to that would know how necessary was that boon to the people.
Upon the whole letter, taken as a whole, they would have to consider whether the prosecutor had been exposed to ridicule, hatred and contempt. Was it a libel slandering Mr Nelson, or not? That was the only question they had to consider as no provocation would justify a second libel.
The Jury then retired to consider their verdict.
The Chief Justice: A more ample withdrawal of all charges and apology words could not carry.
Mr Hayllar, after consulting with his client, said they left it in his Lordship's hands.
Mr Hayllar remarked that although there were many courses open to his Lordship, to Counsel there was only one course. He was not in a position to assist his Lordship, Mr Francis twice essayed to quote some authority to his Lordship, and was twice told that sometimes wisdom lay in silence.
THE SENTENCE.
( 47 )
degree of punishment comes to, for I am sure Mr Hayllar does not seek for imprisonment.
I think that not only here, but elsewhere, that the libels which form the subject of criminal proceedings should be those only in which there are slanderous attacks on persons in high position or which scandalously affect public opinion; that these must necessarily be in the nature of criminal proceedings, but when they are ordinary defamatory libels criminal proceedings are out of place.
The prosecution for libel is not vindictive.
After what has been said Mr Pitman cannot say that his mouth has been shut. He, through his Counsel yesterday, gave Mr Nelson credit for having done nothing which would justify the insinuation complained of in the letter.
I look on this as an admission which is invaluable to you and should be satisfactory to the prosecution.
I must say, Mr Pitman, that had that letter been written by you without the cause which you set forth, and refer to in the two passages, had this letter been sent spontaneously by you as a charge against Mr Nelson, I should have passed the severest, the most strong punishment in my power under the indictment before me.
This species of libel which could not be supported by truth or fact shows a malignant mind which should be curbed in some way.
There is a great deal too much of that species of libel in all society and not less in this Colony than in some others.
But when you say that, wincing under this gibe, under the pain caused you by Mr Nelson in this speech which has been published and now appears in the official report of the proceedings and in the book of the Chamber of Commerce, which is printed at their expense and circulated by them, it being thus inferrable that the Committee have adopted or approved of it, I can quite understand that you as a gentleman having commercial interests should feel that very severely indeed, nor do I wonder that you should lose that proper restraint over yourself which every man should have.
The charge baring reference to Mr Nelson's dealings was of the most grave kind, it insinuated a great deal more than it uttered; whilst the passage of the libel referring to the trafficking in shares, specially having regard to the antecedent history in this Colony, was also a very serious charge.
But you were goaded, greatly goaded to writing this letter.
I am very much inclined to regard it as reasonable that a previous libel be allowed as a set off on a original trial on a libel charge.
But that is not the law.
This is the law, that when a man is convicted of libel and has had a previous libel on himself, it becomes a matter for consideration of the Court, and the Court is bound, instead of giving the ordinary sentence which would be imposed were there no such circumstance, to allow the previous libel case as a set-off, as it were, in the sentence.
I feel sorry that this line should have been taken in this case because it is not one for imprisonment.
In a case which has been referred to, in which a clergyman was concerned and in which all sorts of things had been alleged against him, they found not for him for a farthing damages, and the judges would not have it.
They expressed their disapproval of the verdict.
In that case as in this the person before the Court was a gentleman of position and education, and he should have known the damage he was doing.
I can hardly say clearly whether I am doing right or wrong; the case is a difficult one.
The sentence is that the defendant be fined in the sum of fifty dollars ($50), and be imprisoned till that fine be paid.
I am not at all sure that I am doing right in this matter.
Mr Francis asked the Court to allow him to explain that if during the course of this trial he had seemed to be wanting in any way in respect to the Court, that nothing was further from his mind, and that if overzeal for the welfare of his client had carried him away so as to be guilty of such seeming want of respect, he was anxious to apologise.
The Chief Justice, bowing to Mr Francis, laughingly said, that though Mr Francis had twice flatly contradicted him, he dare-say he only wanted to instruct the Court as to its duty; that was all.
CORRESPONDENCE.
His Lordship then dismissed the jurors, remarking that they had given the case great attention and that they could not have come to any other conclusion.
Sessions adjourned.
IN EXPLANATION.
1.
To the Editor of the "China Mail."
Hongkong, 10th June.
Sir,-May I request space in your columns for a statement with regard to my speech at the Chamber of Commerce which was so freely commented upon in the criminal proceedings concluded yesterday?
That Mr F. Ryrie in his evidence at the Police Court, during my absence from the Colony, and Mr Francis in his capacity of Counsel for the defendant should attribute to my words a meaning they were never...
420