He also asked the jury to compare the letter signed "Hudibras" with the article forming the subject of this action, and asked whether a man who could not put two sentences together in decent English could have written that article.
The defendant objected that it was not in evidence that the writer of the paragraph wrote the letter signed "Hudibras."
His Lordship said the jury might fairly draw the conclusion.
Mr. Francis said that to use an Americanism, Mr. Stewart Fraser-Smith had given himself away in that matter, for he refused to say who wrote the letter on the ground that it would criminate himself, and admitted that no one else would be criminated by the answer. He thought the evidence of the defendant as to his being at Macao at the time this letter was published was not of much value, nor was that of the alleged conversation with Mr. Rose, when no dates were given. What had Mr. Rose done to offend these Corsican brothers that they should have dragged his name into the matter? He had absolutely nothing to do with the Tytam Waterworks or the contracts for it, and therefore there was a palpable falsity on the face of the statement. Mr. Francis argued that all the probabilities were in favour of Mr. Rose's story being true. As to the question of malice, he thought it was not necessary to go into that in this case. The jury must consider whether the defendant had taken all the necessary precautions in the insertion of this article, if they believed he had not written it; and did it look as if he had done so in the face of the letter signed Hudibras, and the fact that the paragraph was repeated in the overland edition of the paper after proceedings had commenced in court. Mr. Francis also expatiated upon the nature of injury done to a man by libel, and used Shakespeare's well-known quotation on the subject "he who steals my purse" to.
His Lordship adjourned the court at this stage till 2.30, stating that there was a matter concerning the liberty of a person in gaol which he had to deal with, and that was a matter which must take precedence.
His Lordship, after the adjournment, summed up to the jury, and pointed out to them that they were not bound to consider the innuendos which the prosecution had attached to the article complained of, but having attached those innuendos, the complainant bound himself by them, and could not explain the article in any other way. His Lordship also alluded to the comments that had been made as to the word "jobbery" but the definitions in the dictionary or other writers need not affect the jury much, as the question was what was the meaning of the imputation contained in the article against Mr. Price. The word might be used in a very innocent way, or in its worst sense in a very opprobrious one.
As to the defence set up, his Lordship at first hardly knew whether it was a defence at all. Defendant first stated that the article was published without his knowledge in his absence, and then he defended the article. The law bearing on the subject was then exhaustively explained, the nature of the cases quoted by the defendant stated, and other decisions also brought to the notice of the jury, and their bearing on this case explained. His Lordship defined the difference between slander and libel, and he also spoke in general terms of the liberty of the press, expressing an opinion that in England there was no fear of curtailment of that liberty, it was too well assured, and the fear now was of tyranny of the press—that it would usurp functions which it was not to the public advantage it should do. Absolute liberty could never be granted to it, nor to any individual, the only persons who enjoyed it, perhaps, being infants. The question of malice was only material with regard to the defence of privilege. His Lordship proceeded to deal with the evidence, and he remarked that if the jury considered the article was not written by the defendant, Macao was not very far away, and it was for them to consider whether he should not have inspected the articles to be inserted before he left, or have given orders that all should be sent to him for inspection before they were inserted. The jury must also consider whether the way the defendant had explained the object and bearing of the article was consistent with his statement, and also his conduct in re-publishing in his packet edition, and the publishing of the letter signed Hudibras. Up to that time he had never disclaimed responsibility for it, but had defended it.
Supposing the defendant's story as to the way he got his information was true, it did not reflect great credit upon him, for the statement he published was not the same as he said Mr. Rose made. It was also for the jury to consider whether he was justified in publishing the statement given in the promissuous manner it was said to have been without any further inquiry. The defendant said all he, or the writer of the article wished was a Government inquiry, but what kind of inquiry could be made on the statement; and could he not have brought about an inquiry by communicating direct with the authorities? He said that he was informed Mr. Marsh had taken action at once upon the matter he had previously called attention to with regard to the alleged non-payment of the contractors. Such a communication, even if the facts given were untrue, would certainly have been privileged. If the article had been published without the defendant's knowledge or consent, would it not have been a proper thing for him to do on his return from Macao, to have disclaimed having anything to do with its publication, and to have stated that he had no intention of bringing any such accusation against Mr. Price? Had he done so there would probably have been no action for libel. Instead, however, it was again inserted in the packet edition, and this letter by Hudibras appeared. As to the appointment of a special jury, that was a matter which was in the discretion of the Attorney-General, and he was not prepared to say that had it rested with him he should have done otherwise. At all events, he did not see how the defendant should consider it unfair to him that he should be tried by gentlemen who were the pick of the colony. His Lordship said he was sorry that the defendant should have thought it right to state in his defence that the reason he withdrew his plea of justification was because he considered that the question of the truth of the charges was not one for that court to consider but for the Secretary of State for the Colonies; he had hoped that all charges against Mr. Price's honour had been abandoned throughout. If the defendant had been able to satisfy them that Mr. Price had been guilty of bribery or corruption, that would have been sufficient to entitle him to the verdict of the court on the ground of justification. So far as the evidence went there was nothing to affect the honour of Mr. Price.
The questions for the jury to consider were whether or not the article complained of was libellous—whether the words were defamatory in themselves—and if so whether they thought the defendant as a public writer had a right to write of Mr. Price as a public officer in that way. Also whether he was justified in using the information to write as he did, considering the way he said he received it. If they thought he was, the verdict must be for the defendant. If they thought the defendant was not responsible for the article, or that it had nothing defamatory in it to Mr. Price, or if they thought, notwithstanding anything he had said or Mr. Francis had said, and notwithstanding that no case had been cited on the point, that the defendant as a public writer was justified in referring to matters which were not public, nor brought into publicity either by the prosecutor or any other reliable way, then they must find a verdict for the defendant. If they thought he had only exercised his rights as a public writer, and had written a fair article upon facts he could prove were supplied to him in such a way that he had reason to believe they were correct, then they would find the prisoner not guilty.
The summing up lasted about three hours. The foreman asked whether the jury had any questions to answer.
His Lordship said a verdict of guilty or not guilty would be sufficient, but if the jury wished to express any opinion, he should be very happy to listen to them.
The jury retired, and were absent from court over half an hour, and when they returned to court, the Registrar put the usual question as to whether they were agreed on their verdict.
The foreman—Yes, the jury decide by four to three that the prisoner is not guilty.
The court was then adjourned till Monday.
Page 63
He also asked the jury to compare the letter signed "Hudibras ”” with the article forming the subject of this action, and asked whether a man who could not put two sentences together in decent English could have written that article.
The defendant objected that it was not in evidence that the writer of the paragraph wrote the letter signed " Hudibras.”
His Lordship said the jury might fairly draw the conclusion.
Mr. Francis said that to nas an Americanism Mr. Stewart Fraser-Smith bad given himself away in that matter, for he refused to say who wrote the letter on the ground that it would oriminate bimself, and admitted that no one else would be oriminated by the answer, He thought the evidence of the defendant as to his being st Macao at the time this lotter was published was not of much value, nor was that of the alleged conversation with Mr. Rose, when no dates were given. What had Mr. Rone done to offend these Corsican brothers that they should have dragged his name into the matter! He had absolut ly nothing to do with the Tytam Waterworks or the contracts for it, and therefore there was a palpable falsity on the face of the statement. Mr. Francis argued that all the probabilities were in favour of Mr. Rose's story being trae, As to the question of malice, he thought it was not necessary to go into that in this case. The jary must consider whether the defendant had taken all the necessary precautious in the inser- tion of this article, if they believed he had not written it; and did it look as if he had done so in the face of the letter signed Hudibras, and the fact that the paragraph was repeated in the overland edition of the paper after proceedin za had commenced in court. Mr. Francis also ex. patiated upon the nature of injury done to a man by libel, and used Shakespeare's well known quotation on the subject "he who steals my parse" to.
f
His Lordship adjourned the court at this stage Į till 2.80, stating that there was a matter concern. ing the liberty of a person in gaol which he had to deal with, and that was a matter which must tako precedence.
His Lordship, after the adjournment, summed up to the jury, and pointed out to them that they were not bound to consider the innendoes which the prosecution had attached to the artiele oom- plained of, but having attached those innendoes, the complainant bound himself by them, and could not explain the artiolo in any other way. His Lordship also alluded to the coutanti as which had been made as to the word "jobbery but the definitions in the dictionary or other writers need not affect the jury much, 88 the question wis what was the meaning of the imputation contained in the article against Mr. Price. The word might be used in a very inno. gent way, or in its worst sense in a very oppro- brious one.
As to the defence set up, his Lord- abip at first hardly know whether it was a defence at all. Defendant first stated that the article was pablished without his knowledge in his absence, and then he defended the article. The law bearing on the subject was than exhaustively explain. ad, the nature of the cases quoted by the defend- ant stated, and other decisions also brought to the notice of the jary, and their bearing on this case explained. His Lordship defined the difference between slander and libel, and he also spoke in general terms of the liberty of the press, expressing an opinion that in England there was no fear of curtailmaat of that liberty, it was too well assured, and the fear now was of tyrrany of the press-that it would amrp fanctions which it was not to the publis advantage it should do. Absolute liberty could never be granted to it, nor to any individual, the only persons who enjoyed it. perhaps, being infants. The question of malice was only material with regard to the defence of privilege. His Lordship proceed- ed to deal with the evidence, and he remark. ed that if the jury considered the article was not written by the defendant, Macao was not very far away, and it was for them to consider whether he should not have inspected the sticlas to be inserted before he loft, or have given orders that all should be sent to him for in- spection before they were inserted. The jury must also consider whether the way the defen. dant had explained the object and bearing af the article was consistent with his statement, and also his oondast in re-publishing in his packet adition, and the publishing of the letter signed Indibras, Up to that time he bad never dis elaimed responsibility for it, but had defended
it. Supposing the defendant's story as to the way he got his information was trus, it did not reflect great credit apos him, for the statament be pablished was not the same as be said Mr. Rose made. It was also for the jury to noasider whether he was justifled in publishing the statement given in the promissnoas manner it was said to have been without any farther in- quiry. The defendant said all he, or the writer of the article wished was a Government inquiry, but what kind of inquiry could be made on the statement; and could he not have brought about an inquiry by communicating direct with the anthorities? He said that he was informed Mr. Marsh had taken action at once upon the matter he had previously called attention to with rozard to the alleged non-payment of the contractors. Such a communication, even if the facts given were uatras, world cartainly have been privileged. If the article had boou published without the defen lant's knowledge or consent, would it not hare been a proper thing for him to do on his retura from Micao, to have disclaimed having anything to do with its pablica. tion, and to have stated that he had no intention of bringing any such accusation against Mr. Price! Had he done so there would probably have been no action for libel. Lustoad, how. ever, it was again inserted in the packet edition, and this latter by Hadibras appeared. As to the appointment of a spanial jury, that was a matter which was in the discretion of the Attorney-General, and he was not prepared to say that had it rosted with him ho should have done otherwise. At all events he did not sua bow the d-fendant should consider it unfair to him that be should be tried by gentlemen who were the pick of the colony. His Lordship said he was sorry that the defendant shonla have thought it right to state in his defence that the reason he withdraw his ples of justifi. sation was because he considered that the question of the truth of the obarges was not one for that court to consider but for the Secretary of State for the Colonies; he had hoped that all charges against Mr. Prioe's honour bad bəən ab- andoned throughout. If the defendant had been able to satisfy them that Mr. Prios had been guil. ty of bribery or corruption, that would have been suffoient to entitle him to the verdict of the court on the ground of justification. So far DE the evidence went there was nothing to affect the honour of Mr. Price. The questions for the jury to consider were whether or not the article complained of was libellous-whether the words were defamatory in themselves-and if so whether they thought the defendant as a public writer had a right to write of Mr. Price as a public officer in that way. Also whether he was justified in using the information to write as he did, consider. ing the way he said he received it. If they thought he was, the vardiet must be for the defendant. It they thought the dafen- dant was not responsible for the artiolo, or that it had nothing defamatory in it to Mr. Price, or if they thought, notwithstanding auy- thing he had said or Mr. Francis had said, and notwithstanding that no case had been cited on the point, that the defendant as a public writer was justified in referring to matters which were not public, nor brought into pablicity either by the prosecutor or any other reliable way, then they must find a verdict for the defendant. It they thought he had only exercised his rights as a publio writer, and had written a fair article upon facts he could prove were supplied to him in stoh a way that he had reason to believe they were correot, then they would find the pri soner not guilty.
The summing up lasted about three hours. The foreman asked whether the jury had any questions to answer.
His Lordship said a verdiet of guilty or not guilty would be sufficient, but if the jury wished to express any opinion, he should be very happy to listen to them.
The jury retired, and were absent from court over half an hour, and when they returned to court, the Registrar put the usual question as to whether they were agreed on their verdict.
The foreman-Yes, the jury decide by four to three that the prisoner is not guilty.
The court was then adjourned till Monday.
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