FOR THE DEFENCE

New Zealand Times, Volume XLVI, Issue 10609, 7 June 1920, Page 6

FOR THE DEFENCE

SIR J. FINDLAY’S SPEECH. PLAINTIFFS “ALMOST MAJESTIC EFFORTS.' 1 Addressing the jury in his turn, Sir John Findlay said (that they had been listening to a speech which had taken just exactly an hour to deliver—a speech maiiily occupied in impressing upon them the almost majestic merits of tho plaintiff in that case. With all his skill alt tho bar, his learned 1 friend, it scanod to him, entirely outdid the applause with which he circled his client. It semed to him that it would bo almost impossible for a man to bo so exceptionally courageous, high-mind-ed, and noble, as his learned friend hrui described the plaintiff for nearly an hour, His learned friend’s first comment on tho case was that the defendant called no evidence. What evidence could they have called? They had frankly admitted that the statement wa.< incorrect, that it was duo to editorial inadvertence, and that they wore prepared to publish that admission in the letter read. If the intention was to prejudice tho minds of the jury because tho defendant had not called evidence, the simple answer

was that there was no evidence to call. He asked the jury not to focus their minds upon petty details, but to take a broad, large, and fair view of the whole of the circumstances. “KEYNOTE Ob’ THE WHOLE CASE.” The keynote of the whole case was struck by Mr Skerrott himself, when h© said that the jury had a right to know what manner ot man it was who oamo there to seek a remedy at then hands. The plaintiff came there for damages for injury (to character; and they , had a right to know the merits of the case, He did not wish to indulge in rny abuse of Professor von Zcdlitz; but coming into a court of justice to smite a paper for damages, the plaintiff had got to see that his armour was fairly proof. What were tlie broad facts of the case i It is stated, that the Government of the dominion had a right—no, ho said a duty—to initom every German within our shores. Hundreds of Germans, quite as' innocent of a suggestion of disloyalty as Professor von Zedhtz, were promptly interned and wore kept interned throughout tho war. hy •was an exception made in his case? Why!' Tho labourer, Htho smaller shopkeeper were interned; even a German band that was about onr streets innocently playing music was interned. Why was Professor von Zedlitz not interned? Tho existence of political influence tliroughout tho war—lie would not say in New Zealand alone was disastrous in scores of cases to the Ives of our people. The attitude taken up by tho “Times,” then, was one of strict propriety during tho war—-that every Gorman should bo interned tor tho 'safety of our country and to secure that no help should be given to tho enemy. Without one particle of animosity’ against Professor von Zedlitz, but simply because in duty bound, that journal had urged that ho should bo interned. Ho got, however, exceptional treatment. Was it not strange that the letter he (counsel) wa a going to call attention to should be wrmWn to a man who was not interned? Ho I referred to .the following letter, darted I December 2nd, 1914, from Sir hrancis 801 l to tho plaintiff:— “Hear Professor, —You will understand that in the stress of war it is natural that questions should be raised concerning those members of the mcuiy nations who are living in this jountry, and you are probably aware diat your own status has been one of such subjects of public and private liscussion. “With the concurrence of air Allen, vho is Minister for Defence and Education, I write this. 1 am aware that , rou are of German birth and race, and that you have retained your national character and sympathies, which are at this present time as widely Efferent as possible from the sympathies and aspirations of England and of New Zealand. But, in our view, and I hope in yours, you axe a guest of this country, and indirectly in its service, and therefore not free, directly or indirectly, to give information or assistance ot any kind to our enemies. It is just possible that that may not be your view—that you may hold your patriotism to define your duty, in which ease the whole matter must bo reconsidered. For that reason I write you to satisfy the Government, by your written assurance, that you will hold no communication, direct or indirect, with any, of your nation, or ot any enemy nation, whether in or beyond New Zealand, except with the express consent in writinn' in each case of tho Government of "New Zealand; and that, under no circumstances, will you give, or he a party to giving, information of any nature whatever to tho enemy. “I should he glad also if you would give tho like assurance with respect to the past. as. I propose to you with respect to the future —this not for my personal satisfaction, for my knowledge of your sense of honour and duty is sufficient, but I desire to be able to refer to your own .word of honour as well as my confident belief. “This is only semi-official, though you are free to use it as you please. I shall bo disappointed if you resent my earnest effort to clear the atmosphere.” “NATIONAL SYMPATHIES RETAINED.” ‘T am awaro that you arc of German birth and race, and that you have retained your national character and sympathies,” was, commented counsel, the opinion of a responsible Minister of tho Crown, who added that those sympathies wore “at this present time (December, 1914) as widely different as possible from the sympathies and aspirations of England and of New Zealand.” Here was a letter commencing with an unqualified statement that this professor had retained his national character and sympathies. How did the Minister know that? This gentleman had been twelve years in the Dominion, and, there was no doubt, in contact with the then Mr Bell. At any rate, the Minister had no doubt about lus national character and sympathies. And what was the reply of this gentleman r “When war was declared, I conceived it my duty to go to Germany and volunteer for some non-combatant work. Th„ German Consul here showed me tho material impossibility of doing that.” Supposing there had been no material impossibility, w r as it not a fair inference that this gentleman would have been on Ins wav to Germany to take part in the fight? ‘hat admission, declared Sir John Findlay, seemed to him to bo one pf the most discreditable admissions that any man could make, looking at the death struggle upon which our nation was entering, and looking at the fact that yyiv i*i’c to lose tho flow er of our manhpod in the world war. “NEAR TREACHERY.”

That statement that tho plaintiff conceived it was his duty to go back to Germany and volunteer struck him as being as near to treachery to tho British Crown as anything lie had ever seen Ho contended that tho attitude of til© “Times” was one of no personal antagonism to Professor von Zedlitz. Tho plaintiff had admitted that in tho witness-box. What, then, was tho paper doing? It was standing upon principle in this matter, and upon no other ground. In, reply to a letter which practically said that ho was a German at heart, main tamed counsel, a professor who received that letter should have said: “I will not remain. I will seek my living elsewhere.” Counsel had asked the plaintiff why that exception had been made in "his ease, and ho certainly got no satisfactory answer in Ins judgment. What the paper did was to denounce the exception made, and denounce it on the grounds of public safety and public, expediency. ■ Mr Skcrrott: There is no evidence

Sir John Findlay: Ho admitted in evidence that tho paper had all along contended that all Germans should bo interned. Mr Skcrrott; Ho did not. Then, added Sir John Findlay, the plaintiff said that ho had been subjected to systematic persecution, and that there had been lies and malice. He admitted in tho same breath that the "Times” had (shown no personal

animosity; yet he had taken no action against those who had shown malice, but only against this paper. When the papers had been full of that sort of thing, this letter, written months after tho war had closed, and when, there was no excitement such as his learned friend referred to some time ago, these observations as to a broach of the War Regulations about a man about whom a bitter controvert had raged for months, could not possibly,, contended counsel, have done him any harm. The letter was written months after tho war, when there was no excitement, and at a time when it was impossible for the professor to bo reinstated, though there was a stupid agitation to have him reinstated, and it waa in regard to that agitation that the letter was published. It was a pity that these statements were made from inadvertence.

‘‘WOULD HAVE BEEN A TRAP.” Ho earn© now to a sharp contest with his learned friend over the letter frocm the plaintiff’s solicitor to tho defendant, and the defendant’s reply to it. If a man had suffered from Press comment, the common way was to "write and.say: '“The statement is untrue, and unless you publish a retraction and apology! I shall proceed to action.” Then the" paper could apologise and retract, and so cicapo action. But he put it to the jury that the' letter written by the plaintiff’s lawyers would have been a trap —he did not say intentionally so —if the editor of the paper had walked into it. Plaintiff’s lawyers said that they wrote tho letter before action only from a sense of, professional obligation, and desired it to be understood that their client would not bo prepared to accept a bare apology and withdrawal. Again, they said that, it the defendant withdrew the statements found upon inquiry to be unfounded, ‘‘you will undierstand that in making this communication we are not waiving any of our client’s legal rights, and are only doing so to make you aware of the spirit in which Mr <5. W. von Zedlitz is commencing the contemplated proceedings”—“'commencing the proceedings!” What did that'mean? Tt meant that the. defendant might write and publish such an apology as would satisfy them, but they retained all their rights to go on with the proceedings. That, he contended, was not a sincere letter asking for an apology ; and if the editor had fallen into the trap and had written a letter, that letter would have been produced before the jury when the dapiagcs were claimed. The defendant’s reply was to the effect that the letter complained of,was published in pursuance 'of the policy of tho paper already stated, that the inaccuracy had been inadvertently published, and that the defendant would publish that statement in the letter which had been read to the jury. “NOT A PARTICLE OF HARM.” As to tho defamation of character complained of, what, asked .counsel, waa tho greatest ridicule and hatred that they couild express in New Zea- , land to-day ? It was tho word “'German.’’ His learned friend had told them that in our law - to call a man .a German was defamatory, because the word‘‘German” connotednow so much horror and detestation. So that if a man was a German, to say that was to say practically all that could be said to bnng hint into detestation and contempt. Could such a man, therefore, be injured by saying that he had committed a breach or the War Regulations. Those regulations were so numerous that it was dmicult for any man to say that ho had never broken a war regulation. The plaintiff had admitted that he had not knowingly committed a breach' of the regulations. Even Ins learned friend could not be sure that ho himself had nob committed a breach of tho War Regulations. Mr Skernett; Being a German. (Laughter.) fafi- John Findlay contended that saying that the plaintiff had committed a broach of the War Regulations had not don© him a particle of harm, Tire same detestation, ho held, would not attach to the plaintiff, as a German, breaking the regulations, as to a Britisher who had sold his country to the enemy or assisted the enemy m any way. Issuing a process against a soldier was a'breach, of a war regulation; selling milk, 'in Wellington, except wiUUi the authority of tho City Council, was a breach of a war regulation. Ho wished to put fairly and squarely beloro their judgment the question—. What injury could this statement have .done the .plaintiff ? If it had been said that he had been arrested and interned as a Herman, could there have been any cause oi complaint? No. The plaintiff himself said that it would have been quite right to arrest and intern him as a German. He himself had said that many of his compatriots had been arrested and interned. A stupendous amount of fuss had been made about this slip; and that fuss became the less justified when they found tiiat it was not to protect the character of Professor von Zedlitz but to get damages. His learned friend said that they had sued for £RXa> to get a jury of twelve; but ho suggested that it was not to do so, but to see how much a jury of twelve oould be induced to givei WHAT MANNER OF MAN ? Tho jury had a right to know, as 1 Mr okorrett had said, the manner of ’ man who came to ask justice at then* hands. What wa s the character of the man tested by the tests they had to ' apply? When Britain entered upon ' tnat grealb struggle the world war; nere ; was a man who nad been long in this 1 country, long occupying a quusi-pub--1 lie position, married in this country, 1 and yet ho remained unnaturaliscd. * What were the Reasons ho gave for ' that? Counsel was bound to tell them that in his’ judgment tho main reason given waa not sincere. Plaintiff had e said that so long as ho remained non- . naturalised he could not enter into - politics. If he had committed suicide \ he could not have entered into 1 politics! What was the use of a man telling twelve men of th© world that ' ( ij o would not ho naturalised because : it would give him an additional priviI lego in tli© country in which! ho lived? 1 Ho did not believe, declared, counsel, ’ that the reason was sincere. Tho other ? reason, described by tho plaintiff as 1 ‘“snobbery,” ho believed was sincere—--1 the reason that plaintiff was proud of i being connected with a prominent Ger- * man family, and did not want to lose ? that feeling by naturalisation. The 6 plaintiff, in short, wanted to remain ' a German and retain all th© privileges and advantages of being a German. „ t ‘‘ALWAYS A GERMAN AT . HEART,”

Counsel would bring proof to show that ho had always been a .German at heart. Mr Skerrett and his client had endeavoured to show that Professor von Eodlitz was essentially British, not Gorman, nt heart. The plaintiffhad denied m tho box that ho was a German subject. He was a Gorman in tho eyes of our law; but counsel was not going to take that ground. Let tho jury observe tho struggle made by plaintiff and his counsel to impress upon them that by education, inclination, and interests, this man was not German, but British. One incident crushed that out of mind. What

anxiety or stress of mind would a true Briton have had about Germany, except as an enemy? and yet this man saids ‘’When war was declared, I conceived it my duty to go to Germany and volunteer for non-comba-tant work. The German Consul here showed me the material impossibility of doing that. Besides, I have long ceased to be a German' subject, and the German authorities would probably have refused mo admittance as an alien enemy.’’ 'Wbat did the Jury make of that? Her© was si man, married, with three children, who proposed to cross twelve thousand miles of sea to assist Germany, tho land of his fathers. If there was no call or claim upon him at all; if he was British at heart and had only British interests at heart, contended counsel, ho would not have carried that impulse so far as to go to the German Consul and learn from him that there were physical impossibilities in the way of his going to Germany. Tho jury had to ask themselves whether that was consistent with tho claim that- bo wan actually British in sympathy and inclination. MOST PAINFUL- PART OF CASE-

Now, said Sir John Findlay, he came to the part of tho case which ho felt most pain—He put it as strongly as that—in submitting to the jury; because he was bound to tell them that, in the submission he was bound to make, ho must ask them to disregard some of the most emphatic answers given by Professor von Zcdlitz under cross-examination. They were students and readers of the papers, and knew Bomothing of the drift of national feeling in England and in Now Zealand. Wo all knew how, for ten years, at any rate for many years, before the war, wo hud what was called “the German menace.” We in New Zealand gave our Dreadnought some s’ears before the war to show tho Motherland that we stood by her if tho German menace became a reality. The Gormans, on their side, drank their toast to “Dcr Tag”—“The Day.” What day? The day when Germany could get Britain by the throat and bring her to the dust. When war broke out, when Germany declared war against Russia and invaded Belgium and France, was there one of them that did not know that Britain must come into the war and fight it out to the death with the greatest monster tho world had ever seen? Was it, then, conceivable that a man of such intelligence ns tho plaintiff could have had any doubts about it? Was it conceivable, when ho went to tho German Consul to try and get to Germany to volunteer, that ho did not know that Britain would be compelled to fight Germany? The plaintiff knew more about Germany than most of us; and in those dark days if a man was with Germany ho w-ao not with us. “INTENDED TO BECOME AN ENEMY.”

So tho jury had conclusive proof that this gentleman who " came for damages, whom they were entitled t<j know tho manner of character of, was clearly convicted of a desire in tho

early days of the war of taking sides against us. Physical impossibility off getting to Germany—a change n<f doubt later; but, judging by the let* ter to which he had referred, counsel left it with confidence to the jury that Professor von Zedlitz came out of tho case convicted of having intended to become an enemy of our nation. And that was the less creditable when they remembered that he was _ under the protection of our flag, drawing hia substance from our people, that ha was trusted, that he had had the advantages of the British system of education. And yet, with all that, ha sait\ “When war was declared, I conceived it my duty to go to Germany and volunteer for non-combat-ant work.” “Conceived it my duty!” How did the duty arise if plaintiff was not a German subject? If h® was a sterling Britisher, how did it arise? How did it arise? Only on the assumption that he regarded himself -as a German, _ willing to assist I Germany, and know’ing that if he did assist Germany to that extent ho in* jured us. . , . He would- leave oas© in tnia way: (1) In the publication of this letter there was no animosity against the plaintiff. Th© paper waa simply carrying out a principle which was a right and proper one. The reference to a broach of the War Regulations', in view of the circumstances, in view of nil that had been said and done about Professor von Zedlitz, waa not in any sense defamatory. He suggested that tho jury would not find that the-words were in tho circumstances defamatory; that the words did tho plaintiff no harm whatever, Ho put it to them that those references to arrest and breach of a war regulation- could certainly do no man harm who had to go into a court of justice and admit that when we > were entering upon that ghastly conflict ho would take sides with our enemies.