SUPREME COURT.

Evening Star, Issue 3499, 11 May 1874, Page 2

SUPREME COURT.

MACASSEY V. BELL. (Continuedfrom the Stipplement.) His Honor ; Gentlemen of the jury—This is an action for alleged defamatory libel brought by Mr James Macassey, a barrister and solicitor practising in this court, against Mr George Bell, who is proprietor of the Evening -tar. In cases of this description very little is left to the Judge of the Court except to define and explain to the jury what constitutes libel in the eyes of the law, and to point out any distinctions which might be deemed necessary in order to enable them to arrive at a right conclusion. Formerly Courts interpreted what was libel—that is to say, it was the general rule for the Court itself to interpret written instruments, and the Judges took almost the law of libel into their own hands and said what was libel, the only function of the jury being to say whether it was published or not. This was deemed a grievance, and at the end of last century, by what is called Fox’s Act, all mixed questions of fact—what constitute or do not constitute libel—are also left iu the hands of the jury. I for one think that was a great gain tor the personal liberty of Englishmen. No doubt the definition of what is a libel is simply this : any written or printed matter which from its nature has a tendency to injure the person complaining.—that is the plaintiff in the action—in his fair faro a and reputation, or to hold him out to the world as an . object of hatred, aversion, contempt, or ridicule. Of course it is an essential matter that the words so contained should be false, and they must be published deliberately and maliciously. Theonusof disproving that, however, iscass upon the defendant, for tbesimple reason that a man ought to be presumed to be a person of good reputation, until the contrary is shown. Thus, if a map. call au jther a thief, a scoundrel, or a swindler, it is presumed, in tho first instance, that he is nob a thief, a scoundrel, or a swindler, the law casts upon the defendant, who uses defamatory words of this description upon the mere presumption of the good fame of the plaintiff, to prove the facts he seta out in what is commonly called his plea of justification. That is the important fact, bub there is also another aspect of some cases for libel, and it is this : the alleged libel consists only of violent and abusive comment. Per instance, iu many cases, actors have been assailed in regard to tipair acting. There is nothing to comment about; it is nqt asserted that they have done any wrongful tiling, or that their moral characters or so forth are wronj* ; but the severity of the criticism has been such $s to sting the actor into bringing ai action for libel. No doubt the question there is whether it is fair conimeut, or whether the comment or criticism is in excess of reasonable fairness ; and that, of course, hj always a question for the jury. Then answer of special ili-will may be made. Ihere has been no evidence given here of, nor it is said there was special malice on the part of Mr Bell, aud therefore the necessary ingredient of jpalice, which is required in order to find a verdict for the plaintiff in an action for libsl, is that implied malice which, the law says, flows from the defamatory writing, deliberately and wilfully put forward. Observations have been made and some quotation was offered by the learned counsel for the defendant as to the Press, and I have no hesitation in saying that I agree most completely with the observations read by you, emanating from very great Judges, Chief Justice Cpckbum among the number, about the liberty of the Press. It is one element m our constitutional liberty which I think every Englishman cherishes, and justly so, for the simple reason that the Press, although no doubt they do sometimes—but not so much now as formerly—exceed and get into scrapes of this description ; yet, a long experience of public life, and also a little experience of journalism, for I have had a finger in the Press pie myself has convinced me that the Press is quite as ready to rush forward ar.d support and laid a public officer who is unjustly attacked, as it is to attempt unjust attacks upon public officers. But occasionally it is deceived. The Press is obliged to resort far and near for literary aid, if the proprietors wish to make their paper attractive ones. No single person can write the whole of the matter for a daily paper, if the paper is to be worth reading at ail; therefore it is bound to depend upon literary aid elsewhere. Now, the Press may be betrayed# without personal malice, into inserting articles that may be libellous. Sometimes a libel will creep in in the shape of an advertisement. It is one of the risks they run ; _ they know it well and are content to bear it. If, having inserted a libellous article, the paper, when applied to, refuses to give up the name of the author, there is no doubt the paper makes itself responsible for the contents of the libel, and ja subject to be mulcted in damages aud costs accordingly, it is not bound to disclose the authorship of an article : it can elect to pay the penalty, and the editor'or proprietor says “I will not disclose the name, look to me.” Mr Smith : There is not the slightest evidence that application was made here for the writer s name. Hi® Honor : It is not to be presumed that Mr Bell writes every article. His sub-editor the gentleman who was put into the box the other day—Mr Cohen, I think—may have written it, for what we know. It is the privilege of the proprietor to say, “I will not disclose the name of the person who wrote it; sue me, 1 will bear the damages and the damages he must bear. 80° that whether anybody else wrote the article or not is a matter of very little importance to the direct issue between the plaintiff and the defendant in this case. Mr Bell has been called the nominal defendant; he is the real defendant also, because he is liable for the damages and costs, and is the person between whom and Mr Macassey (the plaintiff) the real issue in this action must be tried. Now, there is no doubt whatever that there is a great distinction between making comments on the acts of public men aud those of private persona. No newspaper is entitled to enter into the dwelling-house of ,a pnyate person and force him before the public, drag hitn out of his obscurity—out of his castle as it ware and hold him up to public odium. No mal 136 £ aQ offered for that. But every dable • ° stan 4 B any public position is draw tl',7 „T°. re comment (I shall matter nf fa^f r } Ctlon veen comment and ~ 2t justly liable 'ban on thnt!* 6 , oinnA ® n * iS °n bin public acts nan on those of a private person. rh e i„ w not only permits but encourages juries to look somowlmt leniently on n.e*ro nWew I, comment upon the acts of public men. They are not coinpelled to come forward as public men, and though he may have lived iu private security all his life-the instant a man puts himself forward as a public njian, even for a paltry office in a Corporation, or as a member for the next gratis of Proviucial councillor, or as a member of the higher ° f S e iiouae of Re (J resenta. u es, he hold himself out for and is liable to criticism, aud is liable to have all the public

acts of his life exposed and commented upon —exposed, if true, and any private defects of character canvassed and pointed out, so long as that criticism is conducted in a fair and respectable manner. For that purpose I say it is always u eful for any public man to adopt the maxim of Edmund Burke. That criticism of this kind, if it do not exceed stating matters of fact, which a man is hound to meet, a man would best do to live doym. ' A public man should not be too tbm skinned on these occasions. If hostile criticism appears in the Press he bear it—it is only hostile criticism. If be be somewhat sensitive in the beginning. then he ought not to come forward as a public man ; and if he does come forward he should endeavor by self denial to conquer that extreme sensitiveness and bear those sorts of attacks in the best manner he can. But gentlemen of the jury, there is a distinc. ion—and a broa-1 one—between mere criticism and asserting matters of fact. No man, be he newspaper editor or private person, or any other character, under color of mere criticism, is entitled to state a fact as foundation for that criticism, which fact in in itself false and libellous. That distinction a . s . drawn very often. Newspaper criticism sometimes almost unconsciously involves a fact. A man may be nicknamed in the course of an article, which is almost entirely criticism; and be nicknamed in such a way as to put that interpretation upon the article, so that no one could mistake that the intention of the writer was to stamp as it were that person with the attributes of the nickname, as acknowledged. For instance, a bad Emperor is called a Nero; a corrupt Judge, a Scroggs or Jeffreys ; and a cowardly general is called by the name of some general who notoriously has run away. There must be an imputation of fact which would go beyond the line of mere criticism. It is your duty after examining the article and scanning it carefully to ascertain whether it is exclusively criticism. If you come to the conclusion that it is all criticism, and does not contain assertions of fact—for the assertion of fact after all is put iufereutially—then the next step you have to determine is whether the criticisms be fair and reasonable, or whether it overlaps the line of fair and reasonable by degenerating into such severity* as to enable the jury to imply malice. Now these are the questions which are clearly for the jury to determine. It is imputed by the plaintiff that this article |is not mere criticism, bub that it distinctly charges Mr Macassey with two very disgraceful acts—one of which is that he had had a hand in getting up this Chinese petition : it is stated in the plea that be djd excite the Chinese to get up this petition.’ yon must say whether ic was so or nob. It is not for me to say, because it entirely depends on your interpretation of the language of the petition. What is relied upon by the plaintiff is the word “ concocted ” in the first instance and tho final sentence of the first paragraph. I think the mistake of the translations is satisfactorily got rid of. Neither of these belonged to or was attached to the long book, as ibis called, that was presented to tjtie Council, and was different to the one prepared tor presentation to the Council by Mr Barton, in his own handwriting, and afterwards copied by Mr Macassey’s clerk. And I may remark that the mistake was almost immediately discovered oy the editor of the .-tar and corrected in that paper, Th# whole sentence which is complained of is this ' It may he useful to recall the circumstances under which this pretended petition was concocted. if' from what follows this is in your opinion libellous, in itself the verdict must be for the plaintiff; but if you think that it was not intended to apply to the plaintiff, there must be a verdict for the defendant. The plaintiff invites you, upon the mere wording of the article, to conaider whether or not you can come to apy other conclusion than that Mr Macassey was meant. After the word “concocted” the article reads;— Most of us remember when Mr Macassey, alter three defeats, endeavored for the fourth tune to secure a seat in the General Assembly and selected Queenstown as the place for effort! Of course he attacked the Press, and the Press gently replied— I suppose the pen of the Press is about as sharp as the lawyer’s tongue— Of course he attacked the Press, and the Tress gently replied, whereupon’ he laid an in formation against the ‘ Wakatip Mail’ for libel. This information Mr Beetham most properly dismissed, and from that time Mr Macassey appears to have bacome aware of Ur Beetham’s shortcomings, both as Resident Magistrate and Returning Officer. In the latter capacity he attacked Mr Beetham on the bustand. failing to make an impression there, wrote to th(j Colonial Secretary stating that he had sundry charges to bring against him—charges, we may remark, which he never even attempted to substantiate.' All th%t is true enough,' but the sting of the matter is said to bp contained in this'sentence ; The Chinese petition represents the results of Jus labors against Mr Beetham as Resident Magistrate. The question for you to determine upon reading thst is, whether or not it does not impliedly assert -numistakeably insinuate—that Mr Macassey had no quarrel with Mr Beetham until ho laid an information against Warren of the * Wakatip Mail/ which information Beetham dismissed, whereupon he discovered for the first time Beetham’s shortcomings, and that in consequence of that discovery the Chinese petition resulted the result of Mr Macassey’s “ labors, ” as the article says. [ are compelled to hold over tho remainder of his donor’s summiug up. j The jury answered the issues as follows r Did the defendant falsely aud maliciously print and publish of and concerning the plaintiff the article in the declaration mentioned and set forth ?—No. Are the statements of fact contained in the said article true iu substauce ?—Yes. Was the said article a true and dona Me comment upon the several matters and premises therein contained and referred to printed and published by ‘ the defendant without any malicious intent or motive whatever ?—Yes. . 1® the plaintiff entitled to recover any and (if any) what amount of damages from the defendant ?—None. IN BANKRUPTCY. Monday, May 11, (Before His Honor Mr Justice Chapman.) Adjudications.— William Goodwin, David Graham, John Graham, . James Walker Andrew O’Couuor, and David Dougherty were adjudged bankrupts.

CIVIL SITTINGS.

(Before hia Honor My Justice Chapman and a Special Jury, Burns v. The Otago and Southland investment Company (Limited) —This was f action brought by plaintiff to show that 7o X7m el^ ed from llabillt y on a draft for Ld.UUO Mr Barton, with him Mr G Cook, appeared for plaintiff- Mr J. Smith for defendants. I he following gentlemen were empanelled as a Special jury Messrs G. S. Brodrick (:oreman), J F. Watson, R. Rutherford, D. oaxter, U. Irwiu, A, hirkland, W. Scoular, r’ ? a [^ er .« J- Boddington, W. J. Burton, J. Galbraith, and H, F. Hardy, ,

The following summoned jurymen, not answering to their names, were fined 3j5 each:—Messrs H. M'A'eil, Charles Nichols, J. W. .smith, William Stavetey, H. J. Walter, and W. K. Cutten. Mr Peter Thompson asked to bo and was excused. We are obliged to hold over our report of the proceedings in the case.