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But to consider only the matter as it came before them there to-day; that was he did not card on it and asserts that it is true. In a civil action the defendant could go into the witness box and give to the jury and to the public his explanation of the whole matter from his own mouth, and he would especially have been able to tell them why he had said this and on what foundation he had based it, how he had ascertained it, and it would have enabled the jury to judge between himself and his opponent, in these criminal proceedings the defendant was completely shut up, he could not make a single statement to the jury, nor was he as the Counsel for the defendant allowed to tell them anything his client had told him nor any explanation he had given him of his conduct. One would think that if Mr Nelson had been so extremely anxious as counsel had represented him to be to clear his reputation and to vindicate his character that he would have adopted that method which in every possible view of the case provided the most thorough and complete mode of clearing his character from every aspersion that had been cast upon it.
Instead of doing so he adopts this course of proceedings in which he shuts the mouth of the defendant entirely; he seeks not only a complete clearing of his character, justification as would have been given him by a verdict in a civil action, but zealously seeks vindictive punishment which would bring no satisfaction to him, the vindictive punishment of the defendant. If he had to illustrate, as he would have to do later on in his speech, the two terms of law, malice in law and malice in fact, he did not think he could find a better illustration than in these proceedings. While the action which Mr Nelson had taken in this matter was not malicious in point of law he could not be acting in malice in exercising a right which the law gave him he thought he might fairly say it was a malicious proceeding, vindictive in point of fact, a course not adopted by a man who merely wanted to vindicate his character before the public and his superiors, to clear himself from aspersions that had been cast upon him, but who vindictively desired to see the defendant punished.
The whole foundation of what he might call this antiquated form of proceeding with reference to scandalous and defamatory publications with reference to any man were calculated to lead to a breach of the peace. When they were entirely false. In bringing a criminal charge and that under Lord Campbell's Act, as he had done, the prosecutor disposed of himself entirely from the necessity of giving any evidence whatever of the falsehood or truth of the charges against him.
When men carried swords they set their characters right on their sword's point. When the swords ceased to be carried there was a reference to the laws of honour; that honour outraged there was a challenge and an exchange of shots. But the whole system of duelling had departed; the whole system of personal vindication of outraged honour had dropped into disrepute. Even the later remedy, the resort to the horsewhip had gone too, it had been ridiculed and laughed out of existence, and received its final death blow in the recent case of Labouchere v. Lawson.
There was not the least danger that this alleged libel said to have been perpetrated by Mr Pitman would have led to a breach of the peace; none whatever. But Mr Nelson came forward now to vindicate the majesty of the law and to prevent himself from avenging himself and inflicting one of those fine days, an assault on the carcase of Mr Pitman, he comes forward and in the name of the law brings this charge criminally.
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Mr Francis: Not the least doubt about it.
The Chief Justice: Whether the Court would take notice of it is quite another thing. I do not know that I should be ready to do anything of the sort in a case like this. Was that only on one side! Was there only one paper that did that?
Mr Francis: One newspaper, my Lord, the China Mail, has been conspicuous, and has given prominence to the fact whenever it has mentioned the case that Mr Pitman was liable to a year's imprisonment and fine. Referring again to the fact of Mr Pitman's mouth being shut under this mode of proceeding by criminal prosecution, he remarked that the statement that had been made that the reason for the criminal prosecution was to be found in the document itself could not but recommend itself to him as a very extraordinary statement. It was an attack on Mr Nelson's private character with deliberate intent, they were told, to irretrievably ruin him in his business.
If this were so, why did he not take those proceedings which would vindicate his character and compensate him for his injuries instead of bringing these criminal proceedings, which could secure neither the one nor the other, compensation nor vindication. The jury in this case were not to enquire into the truth or otherwise of the charges Mr Nelson was so anxious, they were told, to free himself from, and could therefore give no deliverance on the matter; so that any person who chose to believe that there was truth in these imputations was left quite at liberty to do so, because their verdict did not and could not in any way settle it.
Now, he asked the jury to consider with him this alleged libel, and he had to say at once, after taking into consideration what fell from the Bench, that he did not know if Mr Francis could say Mr Nelson and his friends were responsible for a more extraordinary proceeding than the case had in which the papers in the case copied out verbatim and produced and reproduced. He did not know who furnished those documents; they had not been furnished by him (us), and he hoped they had not been furnished by the officers of this Court.
The Chief Justice: If the documents in the proceedings of this Court are published while proceedings are pending, it is a clear contempt of Court.
Mr Hayllar did not know if Mr Francis was wrong in describing the China Mail as a friend of Mr Nelson's, but certainly a more extraordinary proceeding than the case had been seen; the papers in the case copied out verbatim and produced and reproduced. He might perhaps be wrong in describing the China Mail as a friend of Mr Nelson's, but it was hardly possible to justify the defendant on the ground that it was entirely out of his power to prove that they were true. They could not plead any justification for this libel, if it were a libel.
Was
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But
to consider only the matter as it came be him, whereas the defendant electa tu pro. fore them there to-day; that was he did not card on it and asserts that it is true. In ask them to cast out from their minds, nor a civil action the defondant could go into did he think his Lordship would ask them the witness box and give to the jury and to lay on one aide that general knowledge to the public his explanation of the whole they bad of the history of the Colony, vase from his own mouth, and he would espacially perhaps of the last two or three have been able to tell them why he had years. Within that time there were mat said this and on what foundation he bad ters of notoriety that they were quite based it, how he had esived it, and entitled to take into consideration in dealing it would have enabled the jury to judge with any case that might come before them. between himself and his opponent, He asked them to put aside everything in these criminal proceedings the defendant they had heard or read outside this was completely shut up, he could not Court house as to this case, ita merits or make a single statement to the jury, nor demerits. Following his learned friend, as was be as the Cunsel for the defendant to probably the most convenient course in toll them anything his client had told him addressing the jury on this subject, he came nor any explanation he had given him of first to point out that his learned friend his conduct. One would think that if Mr called their attention to the fact that in Nelson had been so extremely anxious as bie every case of libel or alleged libel there counsel had represented him to be to clear were two methods open to a man who con- bis reputation and to vindicate his character Bidered himself aggrieved to attempt to that he would have adopted that method vindicate bis character, One was the ac- which in every possible view of the case tion by which he sought to recover damages provided the most thorough and complete for the injury he might have received, and mode of clearing his character from Every the other course was to take proceedings by asporeion that had been cast upon it. a criminal prosecution such as Mr Nelson Instead of doing so he adopts this course of had chosen, in which he could not proceedings in which he shuts the mouth recover damages and in which the of the defendant entirely; be seeks not only object to be attained the such a complete clearing of his character, puoichment of the defendant, In a such a justification as would have booti action for damages the prosecutor could given him by a verdict in a civil action, but not succeed (and this was a matter to which zealously seeks vindictive punishment which his learned friend did not direct the atton-would bring no satisfaction to him, the tion of the gentlemen of the jury) without vindictive punishment of the defendant. himself going into the witness box and If he had to illustrate, as he would have to denying, negatively on his oath, the truth da later on in his speech, the two terms of of every single charge, good bad and law, malion in law and malice in fact, he did indifferent, mado against him in the not think he could find a better illustration libel. One would naturally suppose, if than in these proceedings. While the action a man wanted to thoroughly clear his which Mr Nelson had taken in this matter character and to disprove everything al was not malicious in point of law be could leged against him in this leter, which he not be acting in malice in exercising a characterized as a llbol, he would have right which the law gave him he thought instituted that form of proceedings which he might fairly say it was a malicious pro- would have allowed him to go into the box ceading, vindictive in point of fact, a course and testify on oath, and satisfy his superi- not adopted by a man who merely wanted ors, the Board of his Directors and the to vindicate his character before the public public that there was absolutely no truth and bis superiors, to clear himself from in the imputations that had been made. aspersions that had been cast upon him, If he had suffered any injury the jury then but who vindictively desired to see the would have given him compensation for it. defendant punished. The whole founda- If the tendency was to injure him he would tion of what he might call this antiquated have got nominal damages, and he would form of proceeding with reference to scan- have had a verdict if the jury were dalous and defamatory publications with satisfied that it was so that the state-reference to any man were calculated to mente bad no foundation in fact, that lead to a breach of the peace.
When they were entirely false. In bringing a men carried swords they set their criminal charge and that under Lord Camp.characters right on their sword's point. bell's Act, as he bad done, the prosecutor When the swords ceased to be carried disposed of himself entirely from the neces- there was a reference to the laws of honour; sity of giving any evidence whatever of the that honour outraged there was a challengo falsehood or truth of the charges against and an exchange of shots. But the whole
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Mr Francis: Not the least doubt about
system of duelling had departed; the pat and kept before the public he had no- whole system of personal vindication of ver seen; the papers in the case copied out outraged honour had dropped into disre verbatim and produced and reproduced. pute. Even the later remedy, the resort to He did not know who furnished those the borsewhip had gone too, it had been documents; they had not been furnished ridiculed and laughed out of existence, by him (us), and he hoped they had not and received its final death blow in been furnished by the officers of this Court, The Chief Justice: If the documents in the recent case of Labouchero a. Lawson. There was not the least danger that proceedings of this Court are published this alleged libel said to have been per while proceedings are pending, it is a cloar petrated by Mr Pitman would have led to contempt of Court. a breach of the peace; none whatever. But Mr Nolson came forward now to vin-it.
The Chief Justice: Whether the Court dioste the majesty of the law and to prevent himself from avenging himself and inflicting would take notice of it is quite another one of those fine days, an assault on the thing. I do not know that I should be ready carcase of Mr Pitman, he comes forward to do anything of the sort in a case like and in the name of the law brings this. Was that only on one side! Was there this eliarge criminally. Would be only one paper that did that? bave done this if his only object was Mr Franeis: One newspaper, my Lord, to clear his character with the public the China Mail, has been conspicuous, and and his superiors? Would not that have has given prominence to the fact whenever been done a thousand timca more effec-it has mentioned the case that Mr Fitman tually by an action for damages, and at was liable to a year's imprisonment and the Same time have made this en- tine. Referring again to the fact of Mr quiry they pretended to court full. formal Pitman's mouth being shut under this mode and searching. His learned friend posed, of proceeding by criminal proseration, he for himself and his client, as actuated by remarked that the statement that had been the most dignified and noble feelings, made that the reason for the criminal pro- His learned friend bad explained to secution was to be found in the document them the difference between the criminal itself could not but recommend itself to proceeding on which they were now enga him as a very extraordinary statement. lt ged and an action for damages for libel; was an attack on Mr Nelson's privato but he had been careful to ex character with deliberate intent, they were plain it to the jury from his own told, to irretrievably raiu him in his standpoint. They unst very plainly see business. If this were so, why did he that this criminal proceeding made it pos. not take those proceedings which would vindictive course of compensate him for his injuries instead action being taken than any other method of bringing these criminal proceedings, of proceeding. They might plainly see which could secure neither tho
vindica- that the institution of criminal proceedings the other, compensation nor at all was a far more vindictive proceeding tion. The jury in this case were not than any letter that ever was written by to enquire into the truth or otherwise of Mr Pitman or anybody else, He spoke the charges Mr Nelson was so anxious, they of Mr Pitman's connection with the were told, to free himself from, and could Oplum Farm, with the Chinese, with therefore give no deliverance on the matter; the Japanese; these people around us so that any person who chose to believe were quite ignorant of our law and of our that there was truth in these imputations working of it, and they could not understand was left quite at liberty to do so, because any distinction between a criminal charge their verdiet did not and could not in any for murder and a criminal charge for any-way settle it. Now, he asked the jury to thing else. And this WB8 criminal consider with him this alleged libel, and charge, punishable by fiue or imprisonment, he had to say at once, after taking into con- as Mr Nelson and his friends had studiously sideration what fell from the Bench, that and industriously kept before the public for the defendant had not thought he would the last two months
be justified in alleging in any shape or
sible for a more
one nor
Mr Hayllar did not know if Mr Francis form the truth of any of the matters re- ferred to in that letter. Some of them could say Mr Nelson and his friends.
Mr Francis said he might perhaps be cannot be justified by the defendant on the wrong in describing the China Mail as a ground that it was entirely out of his friend of Mr Nelson's, but certainly a power to prove that they were trus. They more extraordinary proceeding than the could not plead any justification for this
Caso bad in which the
been libel, if it were a libel. It was hardly Mr
way
415
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