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trafficker as the letter described him to be. Mr Nelson in the opinion of his employers. As to this alleged trafficking interfering with Mr Nelson's functions as a banker, that was a mere matter of inference; and in view of the specific charges to be substantiated, therefore, the argument that the defendant's mouth had been closed fell to the ground. There was one piece of evidence of some importance to which he had not objected. Defendant's Counsel had asked Mr Nelson whether he was a dealer in those objectionable forms of shares known as time bargains, and Mr Nelson had replied that he never had had one such, and had never had anything to do with a time transaction which depended upon a margin to be paid or received. When the prosecution had brought out such a piece of evidence, brought out by Mr Francis for the defence, nothing could be more calculated to show the extreme recklessness of the charges made. He (Mr Hayllar) had already said that when a libel was defamatory because the writer had not taken the trouble to inquire whether it was false or true, the writer of such a libel committed a very grave offence; and the gravity of this charge was sufficient exoneration for his client for having vindicated his position by a criminal prosecution. They were all exceedingly indebted to His Lordship for shortening the proceedings and saving them from going over the ground as to privileged communication. He hoped that the Jury would come to a right and righteous decision.
THE CHIEF JUSTICE SUMS UP.
plaint before you." What are "the circumstances" to which alone he refers, I can only answer the impudent public attack upon himself, Mr Pitman. I therefore impute to Mr Pitman that in his mind anger induced the letter, anger—furor brevis—a strong passion excited by a real or supposed injury.
The Chief Justice, addressing himself first to the question of privileged communication, said there was no ground on which Mr Pitman's letter can be treated as a privileged or protected communication. The letter is therefore open on general grounds for you, gentlemen of the Jury, in your judgment to decide whether it is or is not libellous like any other publication written or printed. I do not, as I shall presently show, approve of Mr Nelson's attack on Mr Pitman, but for the excuse of his anger I still less approve of Mr Pitman's attack, in the dark; for anything Mr Pitman knew, Mr Jackson might have entered on his investigation with a mind poisoned against Mr Nelson unknown to Mr Nelson, by this letter, and every explanation of the Bank transactions might have been coloured by the secret suggestions in the letter. Mr Jackson, in handing the letter to Mr Nelson did what was manly and right. I think Mr Pitman would have shown greater magnanimity if his anger had allowed him to send to Mr Nelson a copy of his letter to Mr Jackson; as he did not in his anger, think fit to do so, it is for you, gentlemen of the Jury, to declare the letter libel or no libel on the evidence before you. Having thus disposed of the question for my decision after able arguments and a reference to a library of cases, I now proceed to present the case on its general aspects to you, gentlemen of the Jury.
Mr Francis put it that he had contended that all the acts alleged of Mr Nelson were done in his public capacity, and it was pregnant with the insinuation that something would come out of it not creditable to Mr Nelson. That was a charge which it would be for the Jury to say was or was not libellous. They would put themselves in the place of Mr Nelson, as if they were the servants of a Company, and say whether the tendency of the statement was or was not to damage Mr N.'s position as a servant.
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Mr Nelson was the agent of the Directors in London, and it was made against him as a servant of that Board, because he was such servant. Francis had ingeniously put it that this was stated because Mr Nelson held a public position; but that was of course subject to the opinion of the Jury on the point. When it was alleged that this was done when Mr Bleston was on the "eve of his embarrassment," that seemed reasonably to point to the suggestion that damage had been done to the general body of creditors; but it was for the Jury to say whether or not this suggestion was pregnant with that insinuation.
His Lordship reminded the Jury that this was so, and then proceeded to analyse and comment upon the letter. The reason given for writing the letter was, in a word, Mr Pitman's anger. Regarding Mr Nelson as a partizan, the defendant came forward to vindicate the Government, seeing that the Government was not able to vindicate itself, from the attack in the Chamber. In His Lordship's opinion, the Government of this Colony did not require any vindication from any private individual, and was quite able to take care of itself, but evidently Mr Pitman did not think that this was so.
Mr Hayllar, in that suave manner of which he was master, had endeavoured to show to the Jury that Mr Nelson's speech was perfectly polite language, and that Mr Pitman ought not to have got into a passion over it. The Jury might be perhaps inclined to acceptance of these bland terms; but they would read the speech itself and judge of its nature for themselves. Some people were very thin-skinned and could not bear the least breath of censure, while others could bear anything, however coarse or fine; but Mr Pitman, who did not seem to be made for much public warfare, felt this very painfully.
Mr Hayllar had done very wisely in confining the question to the real question at issue; and the Jury would therefore not be asked to pronounce upon the statement in the second paragraph that Mr Pitman was on friendly terms with the Government. The third paragraph required the careful consideration of the Jury, and would probably receive all the care as Mr Hayllar had disentangled it from the two first parts.
The inquiry suggested regarding transactions with Mr Heaton implied that Mr Nelson, in his capacity as Bank Manager, had done something which required to be inquired into, that was for the Jury to answer. "I learn from Chinese sources that the memorial which was presented the other day was got up by a gentleman rather well known in the Colony," He read sarcasm in the word "rather." "Who is in the employ of the Japanese Government"—what is that? It may or it may not be to defendant's credit. "Who is more or less mixed up with the Opium Farm:" some regard the Opium Farm as tolerable, and some that it is not tolerable and that anyone who touches it soils his fingers. Is that a gibe? Was it to his credit or not? And the point raised, whether Mr Nelson was "able to devote his undivided attention to the interests of the Bank," was also for the Jury to construe. A trafficker was different from a trader in that a trader might invest his money for years in shares and other concerns; while a trafficker—the word "traffic," as street traffic, had a busy signification—would frequently buy and frequently sell, and had a special significance in view of the past experience in this Colony.
The defendant had pleaded not guilty; and (His Lordship continued) as the letter itself showed the grievous wrong under which the defendant suffered—which, in fact was referred to in the letter from beginning to end—he would look at the Chamber of Commerce report. The Chamber was the most important body in the Colony, and had deservedly great influence both here and at Home.
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trafficker as the letter described him to be. Mr Nelson in the opinion of his employers. As to this alleged trafficking interfering The letter begins by complaining of a with Mr Nelson's functions as a banker, false and slanderous attack" made by that was a mere matter of inference; and Mr Nelson on him. It complains in angry In view of the specific charges to be terms of the "gibe" at him in the public substantiated, therefore, the argument meeting. I attribute to Mr Pitman that that the defendant's mouth had been he used the word advisadly, it is a scoff, an alosed fall to the ground, There was expression of censure mingled with con. one plece of evidence of some impor- tempt, taunting and sarcastic words; this is tance to which he had not objected. De- the accepted meaning of "gibe," and it ap- fendant's Counsel had asked Mr Nelson pears to me that writing under the "gibe," whether he was a dealer in those objection-most able scoffing by Mr Nelsou, be hit able form of shares known as time bargains, back at the first appropriate opportunity, and Mr Nelson had replied that he never If the introduction to the letter does not bad had one such, and had never had strike the key to the letter, anger, pugne- anything to do with a time transaction cions anger, the last sentence but two of which depended upon a margin to be paid the letter, practically the fiual outpouring or received. When the prosecution had of Mr Pituian's wrath -he hore gives as such a pioce of evidence, brought out by his reason, his only reason for troubling Mr Francis for the defence, nothing could himself or Mr Jackson "about Mc Nelson be more calculated to show the extreme and his affairs, "-ho expressly says that had recklessness of the charges made, He (Mr it not been for that attack he should not Hayllar) had already said that when a libel have troubled himself or Mr Jackson, he was defamatory because the writer had not himself negatives his acting in the dis taken the trouble to inquire whether it was chargo of any public or private duty of a false or true, the writer of such a libel legal or moral kind, by giving as his sole committed a very grave offence; and the reason for his charges, I should rather say gravity of this charge was sufficient exonera- ! insinuations, against Mr Nelson: Mr Nel- tion for bie client for having vindicated his son's "impudent public attack upon me at position by a criminal prosecution. They the meeting referred to." He winds this wore all exceedingly indebted to His Lord-up by saying "under the circumstances I ship for shortening the proceedings and bave no alternative but to lay this com- saving them from going over the ground as to privileged communication. He hoped that the Jury would come to a right and righteous decision.
THE CHIEF JUSTICE SOMS UP.
plaint before you." What are "the cir cumstances" to which alone he refers, I can only answer the Impudent public attack upon himself, Mr Pitman. I there- fore impute to Mr Pitman that in his mind auger induced the letter, anger The Chief Justico, addressing himself first-furor brevis-a strong passion excited I BOU to the question of privileged communica by a real or supposed injury. tion, said
no ground on which Mr Pitman's letter can It has been contended with much energy be treated as a privileged or protected com- that this letter to Mr Jackson was amunication. The letter is therefore open privileged communication. First, that it on general grounds for you, gentlemon of was made by Mr Pitman in the discharge the Jury, in your judgment to decide of some public or private duty, legal or whether it is or is not libellous like any moral, in matters wherein his interest other publication written or printed. I do is concerned, or Secondly, that it was not as I shall presently show approve of Mr privileged as having been made to Mr Nelaut's attack on Mr Pitmau, but for the Jackson in the honest bellef that it was excuse of his anger I still less approve of important to Mr Jackson, the person to Mr Pitman's attack, in the dark; for any. whom it was made, and that it concerned thing Mr Pitman knew, Mr Jackson might the interests which be represented. The bave entered on his investigation with a conduct of Mr Nelson complained of does mind poisoned against Mr Nelson unknown not come within the former category, and I to Mr Nelson, by this lotter, and every am of opinion that it does not come within explanation of the Bank transactions might the latter, and that on neither ground is have been coloured by the secret sugges. the letter "privileged." I am farther of tions in the letter. Mr Jackson, in handing opinion, that, giving Mr Pitman credit for the letter to Mr Nelson did what was manly absence of malice, but in so far as he sbews and right. I think Mr Pitman would have it lo the communication, there is in the shewn greater magnanimity if his anger letter abundant evidence that Mr Pitman had had allowed bim to send to Mr Nelson wrote the letter with the intent to injure a copy of his letter to Mr Jackson; as he
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Mr Francis put it that he had contended that all the acts alleged of Mr Nelson were done in his public capacity,
did not in his anger, think fit to do so, it is and it was pregnant with the insinuation for you, gentlemen, of the Jury, to declare something would come out of it not credit- the letter libel or no libel on the evidence ablo to Mr Nelson. That was a cùargo before you. Having thus disposed of the which it would be for the Jury to aay was question for my decision after able argu- or was not libellous. They would put ments and a reference to a library of themselves in the place of Mr Nelson, as if cases, I now proceed to present the case on they were the servants of a Company, and its general aspects to you, gentlemen of the say whether the tendency of the statement Jury.
was or was not to damage Mr N.'s position Mr Nelson was the agent of His Lordship continued to say that the as a servant. alleged libel had been admittedly divided the Directors in London, and it was made into four paris-the reasons for writing it, against him as a servant of that Board, Mr the public acts of Mr Nelson, the private and because he was such servant. acts of Mr Nelson, and the statement that Francis had ingeniously put it that this the prosecutor was a regular trafficker in was stated because Mr Nelson held a publio ahares.
position; but that was of course subject to the opinion of the Jary on the point. When it was alleged that this was done when Mr Bleston was on the "eve of his His Lordship reminded the Jury that ombarrassment," that seemed reasonably this was so, and then proceeded to analyse to paint to the suggestion that damage and comment upon the letter. The reason had been done to the general body of given for writing the letter was, in a word, creditors; but it was for the Jury to say Mr Pitman'a auger. Regarding Mr Nelson whether or not this suggestion wes pregnant as a partizan, the defendant came forward with that insinuation. The allegation that vindicate the Government, seeing Mr Nelson was "a regular trafficker. ia that the Government was not able to shares," was rather vague; and the Jury vindicate itself, from the attack in the would have to put a meaning on it was it Chamber. In His Lordship's opinion, the to his credit or not? Aud the point raised, Government of this Colony did not require whether Mr Nelson was "able to devote any riadication from any private indi- his undivided attention to the interests of vidal, and was quite able to take care of the Bank," was also for the Jury to con itself, but evidently Mr Fitman did not strue. A trafficker was different from a thick that this was so. Mr Hayllar, in trader in that a trader might invest his that suave manner of which he was master, money for years in shares and other bad endeavoured to show to the Jary that concerns; while a trafficker--the word Mr Nelson's speech was perfcotly polite traffic," as street traffic, had a busy language, and that Mr Pitiau ought not signification-would frequently buy and to have got into a passion over it. The frequently sell, and had a special signific Jury might be perhaps inclined to acceptance in view of the past experience in this these bland terma; but they would read Colony. The defendant had pleaded not the speech itself and judge of its nature for guilty; and (His Lordship contioned) as the themselves. Some people were very thin-letter itself ahowed the grievous wrong skinned and could not bear the least breath under which the defendant suffered-which, of censure, while others could boar aty- in fact was referred to in the letter from thing, however coarse or fine; but Mr beginning to ead-be would look at the Pitman, who did not seem to be made for Chamber of Commerce report. The Ohsm- much public warfare, felt this very ber was the most important body in the painfully. Mr Hayilar had done very Colony, and had deservedly great influence What did they wisely in confining the question to the both here and at Home.
to
real question at issue; and the Jury find? "I learn from Chinese sources that were therefore not asked to pronounce the memorial which was presented the other upon the statement in the second paragraph day was got up by a gentleman rather well that Mr Pitman was on friendly terms with known in the Colony," He read sarcasm in Who is in the om- the Government. The third paragraph the word "rather." required the careful consideration of the ploy of the Japanese Government "—what Jury, and would probably receive all the is that? It may or it may not be to de- "Who is more or less more care as Mr Hayllar had disentangled fendant's credit.
it from the two first parts. The inquiry mixed up with the Opium Farm:" some suggested regarding transactions with Mr regard the Opium Farm as tolerable, and Heaton implied that Mr Nelson, in his some that it is not tolerable and that any Was capacity as Bank Manager, had done someone who touches it soils his fingers. thing which required to be inquired into, It a gibe? that was for the Jury to answer.
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