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of Mr Nelson from his post, then, the law he deserved, was one in which a lady was called said the conclusive presumption of malice a frozen snake. It was the case of a Miss was raised. He had now gone over the Hoar (the case was Hoar and Silverlock) ground in rather a long way; he would who was connected with a Benevolent In- not deal further with it as they would stitution, and the question was whether the have the benefit of his Lordship's ex-position of the Law on the point.
The Chief Justice: Mr Hayllar, I give you notice that I think my functions are very narrow indeed in this case.
1880," and was addressed to "William Jackson, Esq., Assistant Chief Manager, Secretary, &c., &c., Chartered Mercantile Bank of India, &c., &c." It was thus a formal document. It began "Sir, I have awaited;" there was the key note. The writer's wrath had been nursed, the indignity that had been put upon him had been kept warm. It was not a fable or allegory, and it was, ultimately, clearly decided that to call a person a frozen snake was libellous. This showed that one could not conceal himself from the strong arm of the law by hiding the real meaning under an allegorical or sarcastic expression. The "frozen snake" alluded to the fable of the snake that bit the hand of the person who warmed it into life. It was held to be a libel because it was a very common fable which those who wrote it and those who read it would equally understand.
Mr Hayllar agreed with his Lordship. There was only one other point he desired to refer to before coming to read the libel, that was the question whether or not this libel was false. As he read the Act, the falsehood or truth of this document could not be inquired into unless there was a plea of justification, as is laid down by Starkie. That author said (p. 98), "The law always presumes in favour of innocence; and therefore it is not required of a plaintiff to prove the falsehood of an alleged calumny; on the contrary, it imposes the burden of proving the affirmative on the defendant. The truth of the supposed slanderer is in fact a ground of justification which must be substantiated by the defendant."
Then the words of the Act to which it was important for him to call attention were also emphatic. Having pointed out:-"That on the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as hereinafter mentioned, the truth of the matters charged may be inquired into," it went on to say that it should not amount to a defence, unless it was for the public benefit that the said matters charged should be published; and that to entitle the defendant to give evidence of the truth of such matters charged as a defence to such indictment or information it shall be necessary for the defendant, in pleading to the said indictment or information, to allege the truth of the said matters charged." He read that in this way that, as they were without that plea of justification, the prosecution could not call on to prove the falsehood of the libel. It was for the other side to prove its truth, and therefore they not having done so the falsehood of it was presumed—presumed in favour of innocence until the contrary was shown.
It seemed to him that the trial, so far as the evidence went, must be a very short one. He came now to the alleged libel; he would read it with its innuendos and make such comments as occurred to him. He might say before going further that it was not necessary at all that a libel should be in direct words. It might be by innuendoes, sarcasm, indirect narration or reference. A celebrated case of that kind and one which created a great deal of argument, more learned comment he thought than it was worth, was the case of a man who wrote a letter and tore it up, or rather did not tear it up but sent it. It was not a case of a man going home, in the heat of the moment scratching off something, and sending it off at once by his coolie; such a man might have pleaded hurry and haste. A great many people did write letters in that way, and tore them up again; they were wise in doing so. It was a great relief to the feelings no doubt to put our grievances into writing, and next morning it was a very wise thing to tear them up. A great many people let off steam in that way, but in this case steam was not let off. Now we shall see how long this awaiting had been, "I have awaited your arrival;" so there had been a good deal of waiting; inquiries had been made as to when Mr Jackson was coming, the matter had been thought over and resolved on and so forth.
"To bring to your notice, for the information of the board of Directors in London, the conduct of your manager here, Mr Nelson [meaning the said Horace Harrington Nelson] who, without any provocation or reason thought proper, at a meeting of the Hongkong Chamber of Commerce, on the 23rd ultimo."
That would be the 23rd February; the letter was dated 29th March, so that, as nearly as possible, five weeks had elapsed. "To indulge in a false and slanderous attack upon me, coupled with some impertinent remarks about His Excellency the Governor of the Colony, meaning His Excellency Sir John Pope Hennessy, K.C.M.G., &c., &c., the present Governor of Hongkong)." Then he reiterated this in effect by saying "Not only do the expressions that he made use of warrant the above description of them, meaning thereby that they were false, slanderous, and impertinent] but they were uttered with an evident animus to which friends of mine who were present are ready to testify." That was the first branch of this letter. He said that Mr Nelson had indulged in a false and slanderous attack on him at the meeting of the Chamber of Commerce, and the question would be one for the Directors to say—Are we to keep a gentleman on our board who indulges in false and slanderous attacks upon another gentleman without provocation and makes impertinent remarks on the Governor of the Colony?
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Bon, thought proper, at a meeting of the Hongkong Chamber of Commerce, on the 23rd ultimo.
That would be the 23rd February; the letter was dated 29th March, so that, as nearly as possible, five weeks had elapsed. To read this whole letter not only by the light which was afforded by each individual paragraph, but by the illumination which comes from the context. These three paragraphs referred to his public conduct; they all circled around that. But now they came to a charge wrapped up in darkness which might mean a very great deal or nothing, but which finding it in a letter like this they would regard as a most serious, deliberate and grave charge. It also referred to Mr Nelson's public character, and was that which seemed next to justify the observation he had made as to the penalty which seems to hang over a man who makes an attack upon his private character for any public part he may take.
"I think it right, also, that you should be made aware that Mr Nelson, again in virtue of his office as your representative, has long carried on a bitter, active, and ceaseless opposition to the Governor of the Colony, [meaning His Excellency the said Sir John Pope Hennessy]. I cannot believe that such a policy is in keeping with the traditions of your bank, but even if it were, nothing could justify his gibe in a public association [meaning the said Chamber of Commerce] about the friendship with which His Excellency the Governor has honoured me for the last fifteen years [meaning that His Excellency Sir John Pope Hennessy has honoured the said John Pitman with his friendship for the last fifteen years]."
Now that paragraph told its own story. It could not be taken out of the setting in which it found itself, and standing where it did he asked whether it was not obviously penned with the intention to injure, and therefore with malice. Next, the same, to a special and mischievous charge which was not expressed in so many words, but which bore out the innuendo, the interpretation which was put upon it in the information: "Further, I would suggest that, having regard to Mr Nelson's public position as one of your staff, some enquiry should be made into the circumstances under which he became possessed of a transfer of certain shares from the late Mr Heaton on the eve of his (Mr H.'s) embarrassments about a year ago." This was the interpretation they put upon it and asked the jury to accept.
Thereby meaning that the said Horace Harrington Nelson had so corruptly, dishonestly, or otherwise improperly obtained a transfer of certain shares from one Alexander M'Glashan Heaton, who had formerly carried on business as share-broker in Hongkong, had become embarrassed in his affairs about a year before the said letter was written, and had died before the date of the said letter, and his public position as such manager as aforesaid had been injuriously affected.
Now he would
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of Mr Nelson from his post, thon, the law i deserved, was one in which a lady was called said the conclusive presumption of malice a frozen snuke. It was the case of a Miss was raised. He had now gone over the Hoar (the case was Hoar and Silverlock) ground in rather a long way; he would who was connected with a Benovelent Jo not deal further with it as they would stitution, and the question was whether the have the benefit of his Lordship's ex-jury could possibly take into consideration position of the Law on the point-
The Chief Justice: Mr Hayllar, I give you notice that I think my functions are very narrow indeed in this case.
1880," and was addressed to "William Jacksou, Esq., Assistant Chief Manager, Secretary, &o, &o., &c., Chartered Mercan- tile Bank of India, &e., &." It was thus a formal document. It began Sir, L have awaited;" there was the key note. The writer's wrath had been aursed, the indignity, that had been put upon him had been kept warm. It was not a
à fable or allegory, and it was, ultimately, clearly decided that to call a person a frozen snake was libellous. This showed that one could not conceal himself from the strong Mr Hayllar agreed with his Lordship. There and long arm of the law by hiding the real was only one other point he desired to refer to meaning under an allegorical or sarcastical before coming to read the libel, that was the expression. The "frozen snake" alluded to question whether or not this libel was false, the fable of the snake that bit the hand of As he read the Act, the falsehood or truth the person who warmed it into life. It was of this document could not be inquired into held to be a libel because it was a very unless there was a plea of justification, as is common fable which those who wrote it and laid down by Starkie. That author said (p. those who read it would equally understand. 98). The law always presumes in favour That remark would apply to one or two of innocence; and therefore it is not required portions of this letter, but not to many of of a plaintiff to prove the falsehood of an the allegations, because there was no doubt alleged calumey; on the contrary, it imposes the document was a very straight, up-and- the burden of proving the affirmative on the down, hard-hitting letter. The writer of defendant. The truth of the supposed sland- this polished instrument OF document er is in fact a ground of justification which seemed to bare weighed with the utmost must be substantiated by the defendant." deliberation every word, using the most Then the words of the Act to which it was i temperate words where they would suit and important for him to call attention were also using very strong expressions where they emphatic. Having pointed out:-"That on were essential. The letter was dated from, the trial of any indictment or information "8, Peddar's Hill, Hongkong, March 29th, for a defamatory libel, the defendant having pleaded such plea as hereinafter mentioned, the truth of the matters charged may be inquired into," it went on to say that it should not amount to a defence, unless it was for the public benefit that the said matters charged should be published; and and that to entitle the defendaut to give evidence of the truth of such matters charg- ed as a defence to such indictment or in- formation it shall be necessary for the de- fendant, in pleading to the said indiotment or information, to allege the truth of the ing it off at once by his coolie; such a said matters charged." He read that in this man might have pleaded hurry and haste. way that, as they were without that plea of a great many people did write letters in justification, the prosecution could not he call- that way, and tore them up again; they ed on to prove the falsehood of the libel. It were wise in doing so. It was a great relief was for the other side to prove its truth, and to the feelings no doubt to put our grievances therefore they not having done so the false-into writing, and next morning it hood of it was presumed-presumed in fa- was a very wise thing to tear them up.. vour of inaccence until the contrary was great many people let off steam in that way, shown. It seemed to him, that the trial but in this case steam was not let off. Now therefore, so far as the evidence went, must we shall see how long this awaiting had be a very short one. He came now to the al- been, "I have awaited your arrival;" s0 leged libel; he would read it with its inna- there had been a good deal of waiting; in- endoos and make such comments as occurred quiries had been made as to when Mr Jack- to him. He might say before going further son was ooming, the matter had been that it was not necessary at ali à libel should thought over and resolved on and so forth. be in direct words. It might be by inuuen-"To bring to your notice, for the informa- does, sarcasm, indirect narration or refer- tion of the board of Directors in London, the ence. A celebrated case of that kind and conduct of your manager hare, Mr Nelson one which oreated a great deal of argument, [meaning the said Horace Harrington Nel- more learned comment he thought than it son] who, without any provocation or reas
hasty production. It was not a case of a man going home, in the heat of the mo- ment scratching off something, and send-
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Bon, thought proper, at a meeting of the read this whole letter not only by the light Hongkong Chamber of Commerce, on the which was afforded by each individual para- 23rd ultimo."
That would be the 23rd graph, but by the illumination which comes February; the letter was dated 29th March, from the context. These three paragraphs so that, sa nearly as possible, five weeks had referred to his public conduct; they all circled elapsed. To indulge in a false and slan- around that. But now they came to a charge derous attack upon me, coupled with som-wrapped up in darkness which might mean impertinent remarks about His Exoel- a very great deal or nothing, but which find- lency the Governor of the Colony, meaning ing it in a letter like this they would regard His Excellency Sir John Pope Hennessy, as a most serious, deliberate and grave charge. K.C.M.G., &o., &c., the present Governor of It also referred to Mr Nelson's public uba- Hongkong)." Then he reiterated this in raeter, and was that which seemed next to effect by saying "Not only do the express-justify the observation he had made as to the ions that he made use of warrant the above penalty which seems to hang over a man description of tbeo, meaning thereby that of an attack upon his private character for they were false, slanderous, and impertin-any public part he may take I think it ent] but they were uttered with an evident right, ala, that you should be made aware animus to which frienda of mine who were that Mr Nelson, again in virtue of his office present are ready to testify." That was the as your representative, has long carried on first branch of this letter. He said there a bitter, aotive, and ceaseless opposition to that Mr Nelson had indulged in a false and the Governor of the Colony, [meaning His alanderous attack on him at the meeting of Excellency the said Sir John Pope Hen- the Chamber of Commerce, and the question nosey]. I cannot believe that such a policy is would be one for the Directors to say-Are in keeping with the traditions of your bank, we to keep a gentleman on our board who bat even if it were, nothing could justify indulges in false and slanderous attacks his gibe in a publie association [meaning upon another gentleman without provocation the said Chamber of Commerce] about the and makes impertinent remarks on the Gov-friendship with which His Excellency the ernor of the Colony That was the meaning Governor has honoured me for the last fitteen of it. It was meant they should take notice years [meaning that His Excellency Sir of that. Then it went on Mr Nelson is a John Pope Hennessy has honoured the said member of the Chamber of Commerce in John Pitman with his friendship for the last virtue only of his office as local Manager of Hfteen years]" Now that paragraph told its the Chartered Mercantile Bank; conseqnent-own story. It could not be taken out of ly, any unworthy public act of his in the the setting in which it found itself, and Chamber reflects directly upon the Bank; standing where it did he asked whether it and it is thus the elear right and duty of was not obviously penned with the intention the Directors to protect themselves against to injure, and therefore with malice. Next, the discredit resulting from such conduct as they same, to a special and mischievous that of Mr Nelson." That was a very ugly charge which was not expressed in so many paragraph. It turned out directly that Mr words, but which bore out the innaendo, the Nelson was the local manager of the Charter- interpretation which was put upon it in the ed Marcantile Bank. There was no doubt information: "Further, I would suggest about that, and the defendant knew it. He that, having regard to Mr Nelson's public stigmatised Mr Nelson's action as an un-position as one of your staff, some enquiry worthy public aot; which was a very libel- Should be made into the circumstances under lous expression and unjustified. "Reileots which he became possessed of a transfer of directly on the Bank;" that was to say, on certain shares from the late Mr Heaton on the institution to which Mr Nelson looked the eve of his (Mr H.'s) embarrassments for his living. And then the letter pointed about a year ago." This was the interpre- out the right and duty of the Directors, for tation they put upon it and asked the jury which no doubt they would be very much to accept,Thereby meaning that the obliged. What the clear right and duty of said Horace Harrington Nelson had so cor- the Directors was is not very clearly stated, ruptly, dishonestly, or otherwise improperly but it was to protect themselves from the obtained a transfer of certain shares from discredit resulting from the conduct of Mr one Alexander M'Glashan Heaton, who had Nelson. Now, what was the meaning of formerly carried on business as share- that passage, standing by itself? Were it broker in Hongkong, had become enbar- only one stick of a bundle of faggots, what rassed in his affairs about a year before the did it aim at? What did that charge point said letter was written, and had died before to except the removal of Mr Nelson? It the date of the said letter, and his public might be that it was intended to bring upon position as such manager as aforesaid had him merely a severe censure, but they had to been injuriously affected." Now he would
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