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.
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to things locally, not being able to watch a not be pleaded unless it could be shown it man's character and judge it by his daily was for the publio benefit that that subject That was his doings, should be ready naturally to accept should be inquired into.
the word of a person who, according to his position. This was a public matter, and if own statement, occupied a position of such these facts alleged against Mr Nelson were credit and respeut in this colony that he had true, if they could be supported in the letter been for fifteen years the respected friend of or in the spirit, he admitted that it would His Excellency the Governor of the Colony, be a matter, considering the
eirgum-
A man oocupying that position spoke under stances of this colony, which it would a heary responsibility; as a man whose have been for the public benefit to have lightest word would be entirely accepted. inquired into, because it would be a matter That was the position Mr Pitman took up in of very considerable publie importance in this ouse, and he made against Mr Nelson a this colony, if a gentleman occupying Mr. charge which, if true, must have rained him, Nelson's position were not fitted for it. which might have led probably but for Could that have been shown he could not have peculiar circumstances would have led, to his taken, would not have been in a position to being suspended according to the rules of take, ang exception to its being for the public the Bank, and which according to common benefit. But that was not the position that sense, would have shown him to be a had been taken. The truth of the libel was person utterly unfit for the position he on- now not a question for their consideration, cupied, and would necessarily have led to certainly not as he should lay the case be- his recall. The rules of the Bank were fore them; he would proceed to explain just only the rules of all banks and of all insti- how its stood. The plea put in was, as tutions of the kind, and therefore it behoved they had heard, "not guilty." It had a a gentleman in Mr Nelson's position, who certain technical effect; it entailed upon had a charge of this kind made against him, the prosecution the onus of proving certain not to labour under it, not to come forward things. In the first instance it called upon and have a salve for it by means of a them to prove the publication. The publi- pecuniary compensation, but to come forward oation of any document was its going into and vindicate his character, to place himself the hands of anybody but the person to before a jury and have the matter publicly whom it is addressed and referred. It was investigated, so that no stain of these a publication to send it to any but that per- charges might rest upon him. While that sou, except perhaps a man's wife, and that was the position which Mr Nelson had invit- they need not consider here. For all prac ed and was ready to occupy, it was not now tical purposes its going into the hands of a precisely the position which Mr Nelson third person was a publication of the libel. did occupy, and he would explain why. Up In this case the publication appeared to have to within comparatively a few years ago bean in its being addressed and sent to Mr well within his Lordship's recollection--no Jackson, the inspector of the Bank and one justification on the ground of the truth of a of the directore, who was out here. Then the libel oould be pleaded by a person involved plea of not guilty" entailed upon the pro- in a criminal charge. It was harsh secution the onus of proving that the person state of the law which the judges did who appeared to have written the letter was a good deal-did their best no doubt, the person who really wrote it--the person an advancing morality showed the who is on his trial really wrote and published harshness of the law, to modify. They the libel. Then they had to prove, that the clipped it here and clipped it there, until libel itself was a libel. With regard to that he a great many decisions were on the books wight remark that the Law had shifted a in which, under certain circumstances, good deal as to which was the tribunal-the certain portions of the truth might be ad-jary or the judge to decide whether any A libel or not. mitted. Then Lord Campbell, who, as every given publication Fas
as
one know, was one of the most eminent law When libels chiefly took the form of yers that ever sat on the English bench, political prosecutions, the judges in those oaused the passing of an Act by which now days struggled hard to keep the power it was open to any defendant accused crimin-in their own hands to direct the jury; mere mouth- ally of libel, to plead the truth, to inquire the jury then were the into the truth, to give evidence of the truth, piece of any judge to say whether any
libel or and to investigate the charges which have given publication was a been made in the libel, investigate them That formed a long struggle, and it event- down to their very roots. But properly that ually, after * good many condicting licence had been out down by a very wise decisions between arbitrary power and the and moderate provision, which was this, voice of the people, was decided by that a ples of the truth of the libel should statute,which he need not call before
not.
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That
them, it was so clear it needed no argument;-malice, the occasion was privileged. Again that it was for the jury to decide whether persons might, as every one know, publish any given libel is a libel or not, and the reviews or criticisms in the strongest langu- function of the Judge was confined to ex-age upon public men in their publie acts, plaining what a libel ie, merely laying so long as they did not publish them in such down the law on the subject; it was then a way as to show malice. There were a for the jury having the document in their number of other cases in which it must oc- handa to say whether it was a libel or not. cur to everyone that plain speaking being Another element which might be intro- clearly for public benefit was not to be held duced into the case, probably would be in- as libellous, as when a bad or immoral book troduced, was this, whether this libel was criticised in the strongest terms. These was written on a privileged occasion. What were some of the cases in which the publica- was a privileged occasion was an exceeding-tion of libellous matter was privileged and ly important point, and under the direction that privilege formed a defence. But when of his Lordship and using them as his own they came to look at the case that was now words he would read a passage from a stan- before them, he would submit that when this dard work so that they might have it clearly letter was published there was no privileged in their minds what a privileged occasion occasion. Mr Pitman, so far as he knew, was was. The learned counsel then read the fol- not a shareholder of the Bank, was not inter- lowing from Starkie, p. 790, 1869 edition;eated in it at all, and the words and expres- "There existaan important and numerous sions he used were not intended to bring down class of cases, in which the law, conantting on Mr Nelson's head a public punishment, but the general convenience and the exigencies he put it to them they were intended to bring of society, extenda a qualified protection down & private punishment. They were dependent on the question, whether the written by an outsider, one not having the party has acted bond Ade on an occasion alightest legitimate interest in the subject, recognised by the law, or has merely used to bring about a private punishment. The the occasion as a colour and pretext for law on malice, as laid down over and over doing mischief. This most important limi- again, was this,--that every man must be tation seems, on principles of public policy, taken to have contemplated the reasonable already adverted to in discussing the and probable results of his action. grounds of civil liability to extend to all was laid down emphatically by one of our publications made in the fair discharge of greatest judges in a case of libel, the case any public or private legal or moral duty, where Sir Francis Burdett was upon his trial of which the ordinary exigencies of society, many years ago, (4 Baron and Alderon). or the party's own private interest, require The deliberate publication of a calumny the performance. This principle seems to which a man knew to be false or did not comprehend all publications on subjects of know to be true, raised, in a plea of not general and publio concern, in which the guilty, a conclusive presumption of malice. author possesses an interest in common The clause under which this prosecution was with the rest of the community. Every instituted was clause 5 of the Act 6 and 7 vue, as it seeme, has a right to publish that Viu., cap. 96, which had been extended to which, in his opinion, will tend to enlighten, this colony. There were two clauses, one instruct, or even amuse ma kind; he who of which was "If any person shall malici- attains his object may justly be regarded as ously publish any defamatory fibel, know- a benefactor to society, be who fails is not ing the same to be false," and the other amenable as a criminal, however errone-enacted that "If any person shall malici- ous his views may be, nuless it plainly ap-ously publish any defamatory libel." This pear that his real object was not to improve charge was not for publishing a libel knowing or benefit mankind, but to produce publicit to be false, but for publishing a dotama- mischief and disorder by alienating men's tory libel, and not caring whether it was minds from their public or private duties, true or false, not taking the trouble to by base or unworthy means, by destroying ascertain if it were true. The question of their religious faith, corrupting their morals, the truth was not in issue before the jury; or instigating them to acts of sedition, it was a defamatory libel, defaming Mr tumanit, and outrage, or to some other Nelson, whether the writer knew it to be violation of the peace."
false or not. Reading the letter they had That paragraph summed up to a certain simply to say whether they were satisfied extent a somewhat large branch of law. that it was a libel on Mr Nelson, and that For instance, if a person gave a servant-a it was published without oaring whether it usual illustration-a bad character, in words was false or not, and they were satisfied he which were libellons, if the character was not must have contemplated the probable con- given in such a way as to amount to special sequences of his acts, namely, the dismissal
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