THE STATE TRIAL

Oamaru Mail, Volume II, Issue 587, 20 March 1878, Page 1 (Supplement)

THE STATE TRIAL

SUPREME COURT.—IN BANCO.

SaTTTRDAT, 16TH MaRCK.

(Before their Honors Mr Justice Johnston and Mr Justice Williams.) THE OATVLA.RU MALL LIBEL CASE.

JtTDGKEST OX DEMCRRER. Their Honors delt7ered judgment on the demurrer raised to the defendant's plea mthe libel case Regina v. George Jones on Saturday last, sustaining the demurrer. After Judgment wan delivered, air Rees sud I would ask if the other side would give its consent for leave to ' {.lead over."

Mr Haggitt: I shall not. His Honor: It is quite incompetent for us to allow it, without the consent of the other side. Mr Rees: I think the Court had the power. His Honor Justice Johnston : Have you any cases? . , ~ ... , .. Mr Rees: I di> not think it will be disputed ; but I would ask the consent of the other side on thi» ground, that my learned friend, Mr Haggitt, who appears for the Grown, «eems to be uncertain from whom he received his instructions, and who the prosecution is ; and as Mr Whitaksr is in Court—the perron alluded to in the article, who at any rate, if not the person conducting the prosecution, w the person principally concerned, and as he has already stated that every facility should be given ti the investigation of these charges—l would ask ray learned friend to accede to the Tenuest which I make to the Court. Justice Johnston : Have you prepared the plea which y>u propose to introduce instead of this? The Court must treat this as purely a •question of dry law; in go into no merits at all. Without affidavit*, of course, we can know nothing behind the demurrer book-*o that we are not in a position to giva any opinion upon the facts. •, Mr Rees: I wanld ask my learned friend whether he has consulted »Ir Whitaker, or whether on behalf oE the Crown he would grant such consent in the present instance. The ground upon which it is asked w not merely to make charges against Mr Whitaker nor anybody else, but that the defendant may be put in the position, with the consent of the Crown, to have the charges investigated before a com petent tribunal. Justice Johnston: If there are any difficulties about pleading, it may be desirable to relieve the records of certain libellous matter referring to other people which »"> riot necessary. The charges against Dr Pollen for Air Rees : I don't see how it was possible to have omitted them. Justice Williams: If these were otrnck out it would not alter the weight of the charga against Mr Whitaker. Your plea does not charge collusion. Justice Johnston: It is not suggested thaMr Whitaker and Dr Pollen did this collusively. . t , . Mr Rees: The agreement is stated m one ot two of them. „ , ,_ ~„. Justice Johuston : It i 3 said that Mr Whitaker made an improper application, and *hs»t Dr Pollen improperly, illegally, and fraudulently granted it, but that is quite consistent with no collusion. . ..... Mr Rees said there were plaws m which the •collusion could be proved. It had, in the opinion of tne pleader, been necessary to include these statements, but if it was the opinion of the court they were not, they might be omitted. He would be prepared to lay before Mr Haggitt ihe form of plea he would be prepared to substitute within two or three hours. Justice Johnston : The mere patting the Act in will not be sufficient. You can easily see what a very troublesome matter it is to deal witb. If we had to go into the whole matter from besinnii>gtoend,it would be very long. Mr Haggitt: I shall certainly not cossont, your Honor. My learned friend "has put it on the ground that [ do not know who I am instructed by, or anything about it. I certainly do know that the matter comes to me in the usual course as Crown Prosecutor. J nstice Johnston : In the usual conrse? Mr H>ggitt: Yes, in the usual course, the •only difference between this and any other prosecution is, that this has come from Wellington instead of from within this Province, and, I presume, the reason for that is that the defendant reside* in this province! Officially I know nothing whatever about it, as far as anything else is concerned. lam not instructed by Mr Whitaker. Tam hapr-y to take his assistance: but as to being instructed by him, I may say I am not instructed by anybody, it simply comes to me in the position of Crown Prosecutor. Justice Johnston : There is no system by law for the prosecution. _ Mr Haggitt: The regulations contain dis- j tinct instruction!*. Justice Johnston : But they are by the Iterative Government and not lesal duties, but an indication of what Crown Prosecutors are expected to do, and most proper, but there is no system of public prosecution acknowledged by law. On the contrary, the law distinctly tecognizes in every case that the Crown Prosecutor need not interfere if the private one will act; in fact, it is the duty of the Crown prosecutor to ask if the private prosecutor wishes to proceed. However, that is not the question. . . Mr Haegitt: What my daties_ now are, or who is instructing me, has nothing whatever to do with it. . Justice Johnston: A bill h.is been found, the depositions transmitted here, and you appear on behalf of the Crown, no private prosecutor wii-hnsc to interfere. Mr Kees said it was necessary in certiin cases for the party to be applied to to conduct the prosecution. Mr Hagjdtt: It is not an Act. They are instructions under the Gazette 7->, page 50.

Justice Johnston: If it was necessary as a matter of dry law to refer to these instruction*, I should say that w merely an arrangement between the Government and their officers. If the Court were anxious to find fault, which they are not, they would suggest that there is also an instruction t<> the Judge*, because it says what the Judge will do at the trial. It is almost prophetic. . Mr Hnggitt: I was simply g>nng to remark, so far as any instructions 1 haw received from the Soticitor General in this matter, they are confined to making postponement* of the case from time to time in order to suit the convenience of the defendant, that is all. Justice Johnston : I think it is inexpedient to. enter into this: the Court has no fault to find with your status. _ Mr Haggitt I tyiite agree it is so, bnt my learned friend has found faalt, and I am showing there is nothing in it As for my learned friend obtaining leave to " plead over," I submit it should not be allowed. Justice Williams: Mr Eees does not ask leave unless yon agree to its being given. _ _ Mr Haggitt: Ido not agree, and lam giving my rawotw. They are, that there must be an end if this. Justice Johnston : Vt e are not bound to get your reasons. Ido not think we are obliged to ask them. We will listen to yon if you desire to state them. Mr Haggitt: My reason for not cons«nting is that there must be an end to this some way or other. My learned friend has delivered three pleas, each one of which has been ob jected to—l may say demurred to—although one was withdrawn without giving time for actnal demurrer. This is the second demurrer to '.he pleas, and goodness only knows how much longer my friend would go on pleading and I demurring if a stop was not put to it. If my consent is asked or renuired to my learned friend pleading over again I must decidedly lefuse it. Justice Johnston: You have no doubt taken into consideration the possibility of this being found bad on other grounds. Mr Haagitt: lam not the slightest bit afraid of that. I am quite prepared to run the risk of this plea beiug held good on that ground. The Court was then adjourned.

Monday, March ISth. the oamabu mail libel case.

George Junes was charged with having on the 13th of Auguat, as printer an 1 pabl.aher of the Oamaru Mail, composed and publ she J an unlawful, false, acindalotu, and malicious, and defamatory libel against Frederick Whitaker, tfe» J»te Attorne^r-GeneraL

j Mr B. C. Haggitt, Crown Prosecutor, conIdacted the case for the proaecuJion; and ! Messrs W. K Rees and T. W. ffislop appeared for the defendant. | Mr Haggitt in opening the case said : Your Honor, gentlemen of the Jury : The ! defendant is printer and publisher, and proprietor of a newspaper published in Oamaru, which ia called the Evening MaiL He is charged with having on the 13th of August, last year, written and published a false, scandalous, malicious, and defamatory libel of Mr Frederick Whitaker, who was at that time the Attorney-General of this Colony. Gentlemen, I have to ask you in entering upon your duties in this case, in entering upon the enquiry into the charge m»de against the defendant here, to recollect that it is your duty to come tc this trial quite unprejudiced by anything that has taken place outside this Court on or before this day, when yon have been »worn this day for the first time. And Ido this, gentlemen, because I have noticed from day to day lately that articles have appeared in one of the daily papers, which I am sura you must have seen, which articles are in my opinion calculated seriously to prejudice the fair trial of the case. lam now about to call his Honor s attention to an article which appeared in this morning's paper, no later—an article which I have no hesitation in characterising as a most unfair article for any newspaper to publish on the morning of the day when they knew a trial of this kind was going on—an article calculated seriously to prejudice the trial of this case, which is full of misstatements, and which displays a spirit which certainly is not creditable to any paper claiming for itself, as the paper does, the character of a leadiug journal. - . i His Honor : Is it worth while to go into this. Do not you by alluding to them bring them more prominently before the Jury, and d> not your remarks tend to do more harm I than good? Should not the Jury be simply cautioned to put away from them anything they have seen in the paper. If the article is calculated to prejudice the trial of the case, there is a specific remedy, of course, if you wish to adopt it. Mr Haggitt : If, your Honor, I was addressing at the preient time an ordimry Jary, such as is usually empanelled, I should hesitate to do so, but I have confidence in the good sense of the Special Jury, that they will see that articles written in the spirit in which these articles are, oughtnottoinflueuce them at all, and I call attention to this particular article in order that your Honor oiay, when your Honor comes t j charge the Jury, direct them that they ought not to ba influenced by such articles as this, and that the tendency of such articles is unfairly to prejudice the trial. Now this being an article published in a paper circulating through Dunedin, the jurymen empanelled to try tms cause being residents here, I cannot shut my eyes to tae fact that the probability is that nine out of the twelve jurymen must have read the article this morning, and it is necessary something ahonld be said in reference to

Hia Honor: I think their attention should be called to it as little as possible. All that should ba said is simply to warn them not to take notice of that or aay article.

Mr to make of it. I propose to ask your Hono: to read it, if you have not dons s >, but 1 d. not intend t> read it. Your Honor will se< ■What the effect actually is, and tne necessity for some notice t> be taken of it in case •- should have the effect I am afraid it other wise might have, that of tn< trial. It is clearly a gross contempt of o»ur to publish such an article. I do not mak( any application ; if this were a civil case J should certainly consider it my duty to bnnj it before your Honor in that way. As, how aver, we are here for the trial of other matters, I think drawing attention i 3 all that is jary, and askinsc your Honor to take care tha' the minds of the Jury are not prejudicec by reason of it. Gentlemen, it is in conie mence of this and similar other articles whicl lave appeared, from day to day, that I ash 7ou, in coming to the performance of youi iuties to-day, to banish from your mmdf iltogether anything which you have heard, »r seen, or read, outside of this Court; and, 'entlemen, to recollect the oath which you lave just taken, "that you will try ta< ssues raised between our Sovereign Lady the jueen and the prisoner at the B«, and true leliverance make according to the evidence, o help you God." According to the evidence, rentlemen, not according to anything you nay bave heard outside this Court, but ac :ording to the evidence which you will heai 10-day. Now, before going into the matters tharged in this libel I will explain to you, -entleraen, what a libel is denned to be. There ire different classes of libels, of course. Th ire seditions libels, blasphemous libel?, and rations kinds, but the libel we have to dea] vitb is a libel upon a private individual, and i libel upon a private individual is defined to >e a malicious defamation of an individual nade public by printing, or writing, or it may je by signs or pictures, in order to provoke ;hat individual to wrath, or to expose him tc ;he public hatred, contempt, or ridicule, tfow, gentlemen, you will have noticed that: ". said malicious defamation, and in case inything should turn upon that word malL dons in your minds, I will explain to you vhat the word malicious means in the sense s is used in that definition. Malice, gentlenen, consists in the intention of the person sharged to do a particular mischief, and in ibel, as in all otaer cases, wnat the pen-on ntcn-is must be inferred from what he does, rod so if the person publishes an article, the erms of which tend to scandalise, degrade, md injure another, the intention of the perton so acting to produce that result may be so nferred without any other proof than the article in which the defamation is contained. Sentlemen, in the case of libil it is for the Fncy to say whether the article complained of is libellous or not, and in order to enable the Fary to do so, it is the duty of the Judge, trho presides at the trial, to tell the Jury vhat the legal definition of a libel is, and for ;he Jurv to say whether the article proved lefore them came within the meaning of the lefinition of libel at laid down to them by ;he Judge. Now, gentlemen, having ex>laioed to you what a libel is, I will proceed ;o read to yon the article which was com)lained of here as a libel upon Mr Whitaker, ind to point out to you the passages vhich I conceive to be most particularly ibellous. The article commences in this vay. The article was here read, Sow, gentlemen, that is the article upon vhich the defendant is arraigned for the jublished libel, and I think no one can read ;hat article without seeing that it is a most rrossly libellous comment apon the indiviiual igainst whom it is directed. There are, wwever, gentlemen, more parts of this libel n respect of which it has been held neces-i-iry to attach innuendoes to make more dear the meaning which has been put upon ,hose passages by persons who have read the irticle. The greater part of the article, wwever, speaks sufficiently plainly for itself so indicate the object and mtestion which ihe wiiter must have had in publishing it, ind so with respect fc> this part of tie artiole bare are no innuendoes at all. The parts, lowerer, to which there are innuendoes are ihese : The second part of the article, which a in these terms— *' It has oste sibly for its ibject the facilitating of the legitimate settlement of the Native lands, but is actually ntended as an instrument to enable a few Auckland speculators to work another swinlle, meaning thereby that whilst the said Sill was apparently a public measure, having sr iU avpwed pbject to encourage f»ir, Jegi.

timate, and honest transactions in and codings with and settlement apon lands held by the aboriginal population of the Colony of New Zealand, its real and actnal object and intention was to enable the said Frederick .Whitaker and a limited number of persons, who were the friends of and were connected in business with the aaid Frederick Whitaker, to carry out nefarious and fraudulent arrangements, to the prejudice of the said aboriginal population, and of the inhabitants generally of the said Colony." Then a little further on occurs this passage : —" Its correct designation should be ' A Bill to further enrich, at the expense of the Colony, the Attornoy • General and his colleagues in land speculations.' " This is the innuendo upon that—" Meaning thereby that the said Frederick Whitaker had been, by means of land speculations fraudulently and dishonestly entered into by him ia connection with other persons, enriched at the expense of the inhabitants of the said Colony, and that the aaid Frederick Whitaker, in introducing the s»id Bill in the said House of Representatives, was taking advantage of his position as Attorney-General and a member of the said House of Representatives, to endeavour to get a measure passed in order to enable himself and other persons actiDg in coujunction with him by fraudulent and dishonest means, to further enrich themselves at the expense of the Native and Earopeaa races in the said Colony." Then comes what the writer is pleased to term "an account of the circumstances that gave birth to the Native Lands Bill gleaned from authentic sources." So that, gentlemen, the effect of this article going abroad must have been this : to lead every person to believe who read it to the conclusion that the writer of this article had, previously to ' committing it to print, satisfied himself that the account which he was here giving of • transactions in which the article professes to i deal was a full, true, and particular account of the matters of which the writer professes 1 to speak. No other conclusion, I submit to , you, gentlemen, would be put upon these words, commencing with : —" The following account of the circumstances that gave birth , to the Native Lands Bill, gleined from , authentic sources," and then goes on to give a series of details professing to be a full, true, and particular account, in which, jjen- , tlemen, there is no word cf truth. The effacr, . gentlemen, of course, I need hardly point , out to you, of the charges which are contained . irrespective entirely of the first part of the ( article, and the tfTact of this circumstantial . accoauiin the last part of the article, is . simply this, to charge Air Whitaker, as At-torney-General, with having made a corrupt use of the office of Attorney-Genoral to forward hb own personal ends and the personal interests of friends of his own. No graver charge than this, gentlemen, I venture to say, could be made oy any public man. That being the charge, gentlemen, the defendant has pleaded to it the plea of not guilty. The onus therefore is thrown upon the prosecution of proving the publication of this aiticle by the defeud*nt. Now, gentlemen, in order to that end the Legislature of this Colony, by an Act passed in the year 1868, called the Printers and Newspapers Registration Act, has provided cortain facilities through a provisioa coat lined in the 12th section of the Act, which requires *ny person who desires to publish any newspaper to deposit with the Registrar of the Supreme Court an affidavit duly sworn and signed by such proprietors, printers, and publishers, and the Act goes on to provide that in all proceedings, civil or criminal, the s»id affidavit shall be conclusive evidence against any person signing the s»me. Under the provision of that Act, the defendant haviug, as I shall show you, made the affidavit required by that Act, we have to produce a paper bearing the title of the paper referred to in the affidavit, and that being so upon a reference to the tit!c of the paper and to the note at the foot of it, showing the name of the printer and publisher, it will appear that the defendant here is the person responsible as the proprietor of the paper and the publisher of the article which I have just read to you. I shall prove, moreover, gentlemen, that copies of this paper have been purchased at the office at which this paper is published, and I shall identify Mr Jones otaerwise as the printer and publisher of this piper. So, gentlemen, you will have no difficulty in connecting the prisoner with the article, both by thi evidence which the Act has de ;lared to ba sufficient, and evidence outside that. Then, gentlemen, there is only remaining the question of the meaning of this articte, and regarding that there will be the evidence of persons who have read this article, that the paragraphs selected to attach the inuuendos to are capable of bearing the meaning, and did bear the interpretation set forth in the inuuendo3. It is not necessary for you to find in the exercise of your duties that the whole of the innuendos are proved. If you are satisfied that part of the article to which no innuendo is affixed contains libellous matter it is competent for you to find the art cle libellous, and to convict the defendant. Now, gentlemen, I think I have said all that it is nec.-ssary for me to say. It may be that I shall have an opportunity of addressing you by and by, or it may not be so, that will deyeod upon circumstances hereafter, but I have only to add this, that Mr Whitaker, the prosecutor himself, is here, and that I propose to put hi n in the box, so tint, in addition to the evidence I have already indicated, you w.U have him in the box. I do not propose to prove anything by this mean*, but the fact that he, at the time the article was written, held the position of Attoraey-General, and in order to give my learned friend an opportunity of putting any question to him that tie may legally put. The following evidence was then taken :

Colin M'Kenzie Gordon, deputy-registrar of the Supreme Court, produced an affidavit made unler the Printers and Newspapers Registration Ordinance, 186S It was sworn to before me on the 26th May, 1577, by the present defendant, Mr George Jones. (The affidavit set forth that the defendant was printer and publisher o£ the Oamaru Mail).

Eichard Dignan, c!erk at the Customs at Oamaru, deposed : I know the defendaut. He is proprietor and publisher of the Evening Mail, Oamaru. He has an office in Tyne street, Oamaru. The paper produced I purchased at the office of the Evening Mail, Oamaru. The title of the paper is 3 " The Evening Mail," and the imprint shows that it was printed an i published by the propirttor, George Jones.

John Elward Dtnniston, barrster and solicitor of the Supreme Court, practising in Dunedin, having been sworn, said: My attention has been directed to *he article iu the Oamaru Evening Mail of the 13th August. I have read the article. I should say the meaning of the paragraph was that Mr Wbitaker was the origination of the Bill.

His Honor : Is Mr Denniston in a better position to speak to the meaning of the article than anyone else ? Mr Haggitt replied that Mr Denniston had been called to prove the meaning of the article, as it occurred to him. He thought such evidence was useful to prove the innuendoes.

Mr Rees : I certainly consider it is not the interpretations which a lawyer will put upon words which come m within the meaning of " innuendo." Where the circumstances are such that the words bear a certain meaning, Vfii »ttcb a» When flrdjnarily written, then Mr

Denniston might be called to boar testimony to facta which would show the extended meaning of the words, bat not otherwise. Mr Haggitt : I apprehend anyone might be called to give their opinion of what they thought of it His Honor : Is the rule laid down so broadly &t that? However, as Mr Rees does not object, it is for the Jury to say whether they consider Mr Denniston s opinion, or the opinion of anyone else, on the subject, better than their own. Mr Haggitt: What do you consider to be the meaning of the passage—" It has ostensibly for its object the facilitating of the legitimate settlement of the Native lands, but is actually intended as a« instrument to enable a few Auckland speculators to work another swindle.'"'

Mr Dennißton : I would take that t» mean that Mr Whitaker, as Attorney-General and member of the House, had introduced a Bill which, apparently having for its object the encouraging and facilitating hone»t and legitimate dealings with Native lands, was really intended by its introducers to enable some Auckland speculators, who are afterwards spoken of as Mr Whitaker and his friends, to obtain such Unds in an unfair and objectionable manner. It would perhaps stand a much stronger phraseology. I would call it " dishonest manner."

Mr Haggitt: I will call your attention to another part should be a " Bill to further enrich, at the expense- of the Colony, the Attorney-General and his colleagues in land speculations.

Mr Denniston : I would take that to mean that the Attorney-General and his colleagues had previously enrichod themselves at the expense of the Colony by dishonest and improper dealings in Native lands, and that the Bill was introduced with the intention of still further enabling them to pilfer. Mr Haggitt: I would call your attention to the paragraph some distance down. What do you understand by that ? Mr Denniston: I understand that the Auckland land ring—that is according to the article, Mr Whitaker and his friends—had some dirty work to do in connection with land speculation, that they employed an agent whom they knew was equal to doing such work, and further on they say that they did it. The passage I allude to particularly is—" If the Ac.t was allowed to pass, and the swindle perpetrated, " &c. The general description of Brisseuden's acts, throughout the article, to my mmd bear the interpretion. To Mr Rees : I am expressing my opinion hat the article alleged that the agent did the work, and was employed to do it. I think the description of the transaction in re Moon is dirty work. I think the article shows that, in using the word swindle. I did not hear the suggestion from the Crown Prosecutor for a stronger word than " objectionable." I think the expression to "further enrich" means to further enrich himself by unfairly dealing in Native lands. That is to be inferred from the rest of the article. Ido not take detached sentences, or explain the terms. lam not aaked to give my opinion either as a logician or as a dialectician, but as an ordinary plain citizen. I know nothing of the Native Linds Court and its operations. I consider the meaning unfair and dishonest to be involved in the term " swindle."

Mr Rees : Do you not oftan hear the Tord "swindle" used as a term of opprobrium only ? . A , Witness : I don't take that to be the meaning here. Mr Rees : Have yon never heard of land transactions, for instance, which werebroughs about by perfectly legal means cilled a swindle ?

Witness : No ; never in Otago. Mr Rees: You never heard of Clark's block having been called a swindle ? Witness : No. ; Mr Haggitt : If the term "swindle is used to refer to legal transactions, I suppose it must be in the North 1 Witness : Yes ; in the extreme North. His Honor : We will leave that alone.

Witness continued : I have been in practice as far North as Wanganui, and it must have been further North than that.

Mr Haggitt said he had another witness to apeak to the terms, but as he understood his Honor, it would be unnecessary to call a witness to speak to the innueados. His Honor said he might of course call a •witness, but that he did not consider it necessary. The Jury were as competent to judge of the question as anybody else. Mr Haggitt said he did not wish needlessly to multiply witnesses, and he would adopt his Eonor's opinion. Frederick Whitaker deposed .- I am a barrister and solicitor of the Supreme Court, and I reside and practise my profession in Auckland. In August, 1877. I held the office of Attirney-General. From September, 1876, to, I think, October, 1877, I held th.3 office of Attorney General. I have read the article in the Oamaru Mail of the 13th August. It refers to me. I introduced into the Assembly a Bill to amend the Law re lating to Native Lands. It is entitled "A Bill to Amend and Consolidate the L\w re lating to Native Lands." To Mr Rees : I assisted Mr Haggitt in working np the demurrer points. Mr H»ggitt asked my opinion, and I gave it him. I looked up the books, and gave my opinion on then. I exercised no discretion in it, and I refused to have any responsibility. On three occasions I was in Court when pleas were put in. On the last plea being put in I heard Mr Haggitt say he would not allow another plea. 1 know that under the plea of " Not guilty " Mr Jones cannot put in the truth of the alleged libel. Mr Rees: I suppose I may take it for granted you are sorry that cannot be done ?

Mr Whitaker : I am disappointed that it has so taken place that I cannot go into it. Mr Rees : I thought so.

Mr Whitaker : You thought quite righh Mr Rees : I think you yourself wished that the matter should come before the Court, in order that all the facts should be enquired into 1 Mr Whitaker : I came down here for the express purpose of gi\ ing my evidence upon all the questions which you might think proper to put to me. Mr Reei: And yet you did not advise Mr Haggitt to go into the whole issues ?

Mr Whitaker: I declined to give Mr Haggitt any advice whatever. Mr Haggitt did not ask- my opinion, and if he had I should not have given it. Witness coutiaued: I did not till him I was most anxious that these facts should come out. I declined to give my opinioa upon the question of law. As soon as I siw the p'eas [ pronounced them thoroughly bad. I told Mr Haggitt I was acting oa behalf of the House of Representatives. I do not recollect hia statement in Court in reference to that.' I did not bear Mr Haggitt say he did not know he was acting for the Government. I know Mr Thomas Rus-.elL He is and bis been for many years my partner. I Mr Rees : As a matter of fact have not yon and Mr Russell, both together and separately, been engaged largely during tbe past few years in the purchase of land ? Mr Whitaker: I do not think you can say "largely." We were partners only in law, not partners generally. There are trans* actions which we have entered into joint'y, and these transactions are transactions in land during the last few years ; but it is not included jn o«f } have been

connected with Mr Russell in land transactions outside our ordinary partnership. Mr Rees: Wa? not one of these transactions in relation to the Piako Swamp? Mr Whitaker: One of those tra.-asactions was in relation to the purchase of the Piako Swamp. Mr Haggitt said Mr Rees must confine himself more within the point. As far as he could see it had not had much bearing upon the case. He apprehended the question they had to determine was whether defendant had published the article, or whether he did not.

Mr Rees submitted that the principal question to go to the Jury was not the printing and publishing ; itjwas a question as to malice, or whether the matter was a libel malioiously published. His Honor said if it contained defamatory matter, and it was published intentionally, did not that show that it was malicious ? The presumption was irrebuttable under the circumstances unless excuse could be shown for publishing it. Mr Rees said all the surrounding circ urnstances must be taken into consideration. He held that he could adduce evidence to rebut the inference of malice.

What he proposed to establish was the surroundiog facts and circumstances to negative the inference of malice. If he could show such circumstances as would negative the inference of malice he was entitled to do

so. Mr Haggitt submitted that it was simply a question whether the libel was published or not, and any question which did not tend to the'elucidation of that question was irrelevant. His Honor said. Mitjht it not be said that part, at any rate, of the libellous matter in the article might be justified on the ground of its being a comment on the Native Lands Bill. It might be justified as being a fair comment. Mr Haggitt: Under the plea of "Not Guilty ?' Hia Honor : Yes, assuredly. Mr Haggitt submitted that until the facts' were proved no evidence could-be taken. After further argument,

His Honor said he thought the defendant might say that part of the article wui;h did not consist of a statement of facts consisted of fair comment on the Native Lands Bill, and a fair comment on Mr WhifcaKer's connection with the Native Bill, and in order to justify that he might give in evidence the public acts of Mr Wliitaker, that was to say, acts which Mr Whitaker, in his capacity of Attorney-Ganeral, had committed ; and he might also give evideme of what took place during the debate in the House of Representatives. He did not think that they would be justified in admitting evidence of any transaction of Mr Whitaker other thin what, by virtue of his holding a public office, he was subject to public criticism. If the enquiry about the Piako Swamp related to his conduct in some matter outside of his official position he did not tliink the evidence was admissible, though .he would be very glad to reserve the point, because he would be very sorry to prejudicj the defendant in any way by excluding evidence.

. Witness continued: When I became a member of the House 1 did not enter into a contract with the Government for the purchase of the Piako Swamp. I got a conveyance of the land after I was a immber, but that is a different thing to a contract. The contract was completed after 1 was a member of the Hou3e, and while the House was sitting. It was completed by the iesus of, the Crown grant when the House was sitting. I think it was neir July. I made no contract with the Government afoer I becsme a member of the House. While I was Attorney General I was in negotiation for the" exchange of some land—land to which I wis entitled for the last 20 years, *diich I purchased from the Europeans. I remember a Committee sitting on the Waitoa Land transaction. I drafted the proposed Native Lands Bill. The Bill produced is a copy, but I have not the original coyy. I was present in the Police Court at Wellington when Mr Jones was committed for trial. The Court was crowded, and I went into an adjoining room, requesting to be called if I was required. I waited till the case was completed, but I was not called. I I did not hear what Mr Izard, the Crown Prosecutor, said there. The matter of the Bill was considered by the Government prior to roy going to Auckland, and a certain principle laid down by which I was to be guided in drawing up the Bill. I was busy, and portions of the Bill were drawn up from day to day, and from time to time, and transmitted thus to the printer. Some came bank, some did not, and" some were put into the waste-paperbasket. The draft so printed I took to Wellington, arid it was altered there a good deal to suit the different members of the Government. Probably the whole thing extended over two months. In the purchase of the Piako Swamp I hid as partners Mr Ruisel!, Mr Charles Taylor, Mr Murdoch, and Captain Steele. I was prcient, ani voted when the prosecution of Mr Jones was determined on by the Assembly. At first I requested the House to allow me to arrange the matter with Mr Jones. The Honse refused to do it. The question wa% pat to the vote, and I voted for it. I believe I withdrew my motion in favour of Mr Gisborne's. I said that if the House we at into Committer of the whole it would not be satisfactory either to Mr Jones or myself, and that if the case want to tho Supreme Court I should be examined on oath, ad then the casecould be satisfactorily disp >sed of. Mr Rees : Did you hear a statement made in the House that this was to be mule a Ministerial question ? Mr Whitaker : I do not think so. Mr Hagsitfc objected to this line of examination, and asked were they to enquire into everything that occurred in the House ? He submitted it was not relevant. Mr Rees said it was a matter affecting public interest, and therefore the defendant, the Court, and the Jury havd a right to know what took place, and the manner in which the oocurrsnee took placs. Mr Haggitt submitted that the Jury had i nothing to do with the que-ition as to how 1 this case came before the Court, provided it ; was properly before the Court, which was for the Court to decide. The Jury had no

right to be troubled with, questions as to what took place in the House with regard to what Mr Whitaker and others said in the House, or other outside questions whichreally had no bearing upon the enquiry. If outside considerations of this kind were to be admitted, they would find themselves involved in very great difficulties. His Honor ruled in favour of Mr Rees.

Mr Whitaker resumed : I was present during a portion of the debate, and I vote l !. I dp not recollect that anything was said about it being made a Government question. On the contrary I altogether repudiated that it should be a party questioa. Mr Rees: If you saw it you might change your opinion. Mr Whitaker; Yes, it might ;it is difficult to recollect everything. Mr Rees tken proceeded to read from Hansard, when

Mr Haggitt objected. His Honor said he took it that Mr Rees was merely calling Mr Whitaker's attention to Hansard in order to correct hi 3 e.idenie. Mr Haggitt never heard that a printed book might be put in a defendant's hands. Mr Rees: Do you recollect Mr Bonny WlW9jj[ tftw que#tJQtt---#"I eljould like to.know

if this is to be a Government question. It so I cannot vote !"

Mr Whitaker : No, I don't recollect. Mr Haggitt: This is not admissible. His Honor: It .is admissible so far as to calling Mr Whitaker's attention to what did take place. Mr Rees : I should like to know -whether it is admissible to ask witness any question whatever ?

Mr Haggitt: Within the law ; bat if lam aware of it it shall not go outside of it. Mr Rees then asked witness if he remembered Mr Bunny saying he would walk out, on Major Atkinson saying the Government would vote against the word being addodj; and whether that jdid not tend to show it was a Government question ? Mr Whitaker : That would tend to show it was a Government question. Witness continued : I don't say how many oonsidered it was a Government question, or how many did not. I considered it ought not to be made a Government question. Captain Morris was the Government whip. If you refer to what I said you will find it was treated as not being a Government question. I remember a verdict being given against the printer and publisher of the Waka Maori. It was just about that time I left the Government.

Mr Rees : Do you remember in relation to the Native Lvida Bill a petition coming into the Government against it ? Mr Whitaker : And for it, both. Mr Rees asked witness if he remembered how many came in for it.

Mr Whitaker said representations came from the Natives in different parts of the country, in which they pointed out one or two objections to the Bill, but otherwise they expressed their approval I remember a Bill being introduced into the Legislative Council in relation to the Waitoa lands to carry out an arrangement coma to by the Government. It was thrown out on the third reading. That was before I was in the Government. It was in 1875. I was not acting as solicitor for other gentlemen in relation to their obtaining rights while the ccovernraent were purchasing Native lands. Mr Haggitt asked how he oould be expected to know all Mr Whitaker's transactions for yeiis aad years pa3t. He was utterly powerless aud helpless if that lino of cross examination were allowed. "Mr Rees said all the Court had to try was defendant. Tne Court was not trying Mr Whitaker, aud therefore anything which would go to negative the inference of malice either within fie a-ticla itself or from extrinsic circumstances he had a right to adduce.

His Honor ruled, as in the former case, th*t Mr Rees must limit t>e question to what Mr Whitaker did in his public capacity. He held that the last question put by Mr Rees was not admissible, but he would reserve the point. Mr Whitaker continued : I remember a Bill being brought in while I was in the Ministry for the purpose of indemnifying Ministers for petaltios incurred under the Disqualification Act. It was brought in by Ministers At the time I waj treating with the Government relative to the Waitoa exchange. Capbain Beadon was interested in the matter. I acted with Captain Beadon in 1842 or 1843 ; I think four or five and thirty years ago.

In answer to Mr Haggitt's question, "Do you wish to offer any explanation with regard to thase transactions ?"

Mr Whitaker said, in reference to the trarnactions just referred to in connection with Captain Beadon, he bad simply to say many years ago—ho thought ISl2—he was employed by the Governor to enquire into the claim of Captain Bea lon, and see if anything could be nude of it. As far as Oaptain Buarton was concerned, he had nothing to do with his claim beyond specifying the laud given in exchange. Mr Haggitt : Would the Native Lands Bill facilitate or help to carry out any of these transac ions ?

Mr Rees objected to this question, but was eveutu illy overruled by liib Honor saying ho thought the questi >n admissible.

Mr Wlrtaker : No ; of course the Native Lauds Act could not apply to any of them. I wish to be allowed to make one explanation. I wish to say with r.-gard to the Waitoa business, the whole subject was enquired into by a Committee of the House of Representatives. They reported that the question was a fair one, and that if tlio Government did not carry it out I was entitled to compensation. Mr Haggitt : Your Honor, I put in the affidavit of the newspaper. Mr Rees then asked to have an adjournment taken, and at 1.30 p.m. tha Court rose to 2.10 p.m. Upon resuming,

Mr Haggitt then addressed the Jury. He said that as Mr Rees had decided not to call any evidence, that gentlemau had the opportunity of addressing the Jury last, wlnle he (Mr Haggitt) had the opportunity of addressing them first. As, however, ho could not possibly sn'ioipite what his learned friend was going to siy. the opportunity he (Mr Haggitt) nad of addressing tliem was of very little use. Tne duties the Jury had to perform were of a very simple character. They had simply to find whether defendant was or was nob t'jc person resp >n«ibl« for the public ition of this article, an'". «fnether the art : c'c was, or was not, in their opiiion, of su".h a character as to deserve the dtsiftiwtion of libel. As far as the neces?ary proof on the part of the Crown to eat «blish that fact was concerned, the proof was before them. Th-y would have the article placet in their hands, and would have an opportuirty «'f reuiing it for themselves an 1 having read that art ; clo, they would have ti ! decide whettur it was o.' was not what he i had characterised it as being a grossly libellous attack upon Mr Whitaker in conni ct o \ with scv. r.vl transctions to which thai article related, and more especially in rtrlati. n to a public measure, which his duties required him to frame and introduce into the House. It was asserted that the article w.-.s nit malicious, inasmuch as it was a f*ir comment upon a certain trarrvition in which Mr Whitaker, in his publ c capacity, was concerned. But the transactions particularly referred to were his tran«sct ous relating to some land in a swamp. They had not heard where this was, but he thought it was

somewnere about the neighbourhood of Auckland, known as the Piako Swamp, and with regard to the truth of these Mr Whitak«r bad told them at tne time she contract wa* made he was not a member ot the and is was rmide and completed before he was connected with the Government in any official capacity; and all that t >ok place subsequent to his becoming AttorneyGeneral wai that the money before agreed to be paid was paid, and that the Crown grant was issued after he became a member ot the House of Representatives. Now, so far, with regard to that transaction, it was a transaction in no way concerning .Native land at all, or affected by the introduction of the Native Land Bill, which I must b3 apparent to the Jury, inaimuch as the transaction was closed and completed before the Lind Bill wis ] introduced into the House at all. Now, with regard to one other transaction—with regard to some lands which were proposed to be exchanged by the Government with Mr Whitaker for other lands which were required in Waitoa in the year 1833 or 1834, more than 35 years ago. What was the result of that transactioa ? The transaction went before a committee of the House 1 ot Jtaj>we»Utir«ft «4 teewtag to Mr

Whitakcr'a statoment it was borne out by the report of tho Committee which his (M r Haggitt'B) learned friend produced, but which be did not now intend to put in. [Mr Hag, gittq noted from the report of tha Committer, asserting that the exchange of land in qu C| ! tion was a judicious transaction on the Dart of the Government, and should be com. pleted without loss of time.] That was the result which tho Committee of the Houbo arrived at on tho investigation of this native land transaction, to which hii learned friend had referred in commotion with Mr Whitaker's narno. Thoae wore th« only two transactions which had been r «. ferred to, and grounded upon thoae tranm c . tious, his learned friond, ho had no doubt, would addreßS a series—a long sorieß—-of re . marks to the Jury, in which ho would en. deavour to persuade them that, because Mr Whitaker was engaged in those transactions, and which could not have boon affected by tho Native Lands Bill which he was introd uO , iug, the defendant was justified iu the publi. cation of that article containing chargm amounting in short to this: That Mr Whitaier was prostituting his position for his own personal ends, and in order to j>ain advantages for himself and his frieude which, had it not been for holding th«t position, ho would have been unable to gain for himself. Ho contended that nut only was the defondant on trial before tho Jury, but also tho person who was charged by him. And why was this 80 ? Because it wa« competent for tho real defondant in the matter to justify tho charges whioh he made at a trial of this kind if he could do so. His learned friend had no ground for complaint that he was tied down to the p| M of "not guilty." He might havo availed himself of tho remedy of tho law if ho bad choseu to do so. Tho law allowed the truth of a transaction to be given in evidence before a Jury if the plea wero according to law. It was no difficult matter at all it it wera only properly gone about. Anybody acquainted with the principles of pleading could easily have framed a plea which should have brought this matter before a Jury, and his learned friend coiaplained became he (Mr Haggttt) did not admit a ploa of justification not raised according to law, aud which did not raise the real issue involved in tho ease. Had the defendaut been ablo to justify these charttes, tho law providoi means for so doing. The prosecution vim not respousiblo if the defendant did not ohoose to avail himself of the means piovidcd, There was, therefore, no hardship iutiiotoil upon dcteudant at all. He thought he had now said all to tho Jury that was incumbent on him to say upon uhe action. They had had tho imittori which the law required shoald be provoj, conclusively before them; they womd liavt the article oefore them aud they would upon reading that article be entitled to say whether it contained charges against Mr Whitaker, aud whether the charges calm within the deliuit.on of libel. Ho had no doubt his learned friend would refer to the liberty of the Press, and would say the liberty of tho Press was involved ; Out tlior* was no question hero of the liberty of the Preßs. There was no question but that the Press was justified iu publishing anything that it could justify with regard to tho nubile acts of public men, but wben the Proas or any person connected with the Press published charges which had no foundation il all in fact, theu if the Jury upheld the Press in giving publicity to such I transaction as that, they wero not upholding tho liberty of tha Press, but they wero upholding tho Press in committing aoii for which there could ba no justification al all, either legal or moral. \V hat would be tha effect of such publ.catiou ? It was nutty it it was confined to this Colony. N.M papers were exchanged all over the world, aud these charges contained agaiusi, Mr Whitaker might bo read by hnmlroJs oi people who could never sob a refutations alt, aud could only come to the cou;1j«io« that a man holding tho highest position n the Colony coull bo capable of conimn,tiiif such crimes as were here alleged against Mi Whitaker, and that thut man whs tilovdilto retain offica. These charges wero Imuiglil, aud there was no spying wno would saolli* It might bo that the proceedings ol ihi Court, aud the verdict acquitting Air Uw taker, would be published, but it did nut W low that tho persons who read the orchil article would read the refutation. Tin.)* a great amount of mischief might bo create! 1 uven tht.itgh tho p&p-jr containing the clmifci was of such a cnaracter as not, to bo woil 1 while taking notice of it. They were mil I consider the mischief whioh had been Aw but consider the amouut of mischiel wto it might be calculated to do. They could t. help knowing that tho orient of thu article ki b:eu to take up a considerable amouut of il time of their representatives iu Parliauw of the Judges aud those connected rt the proceedings, and of tueir own tunc,« thu would show them that tho publwat' 1 of an article of that kind was calculated to l a considerable amouut of injury. But tin were not the real considerations to wl)« their attention should bo directed. He* only referring to them as anticipate perhaps rightly, perhaps wrongly—tin) en of address his learned irieud would main the Jury. Their attention was to bo coutia to the evidence of tho proof of publication this article, and to the facts of wtiiuli t' were to ju-lgra for themselves—whothurt article was or was not libellous, aud« jected Mr Whitaker to contempt. He a» iheir earnest considcratior. to the roul u« tion. Ho asked them again, as bo ad thorn befofo, to recollect they were iiol be guided by what took place out of t Court, not to take notice of what wuh saw newspapers iu tiie interest of a fcllotv-f nalist; but to discharge their duty as » had sworn to do, aud to try the isiuei 1 tweeu their sovereign lady tho Queen' prisoner at thu bar, and decide the <-'»"' cording to tho evidence, "bo hull)) God." Ha would now leave the case iu' l hands. Mr W. L. Itecs, in addressing the Jury behalf of the defendant, said : Hewajf that after the address of his learned w on behalf of the Crown, it would be(' time before the Jury lunjot the oath t»> Kor not only did they take it theum'j but twice since they had been in tW' the learned couusel had repeated to t lhatthsy must try the c»so "on beshw our sovereign lady the Queen, ami t'' 1 ueliveranr e make," including tho assevtrt "so hilp you Cod." With respect" anticipatory remarks which Mr Haggi" m3do as to the manner in which w> Ileus) purpoted addicssing the Jury" ll occasion, ho might say they were to* extent cornet aud to some extent not cim Mr Haggitt had said that no doubt M Rees) would address them at groat long* two points—the being as to Mr M' ker's criminality, and the second an 8F ■ to the sense of oympatlty in thr-m, _l» rC i the plea of jupt : iioatiort having havinj' put out, tho defendant was obliged to a? i before them on the pl'-a of not guilty- ' ■ ference to Mr Whitakpr's c-imiinl lj'' 1 jards tho Piako aud \Y-ii toa land traniw > ho would diHmu-s tho subject with a to** , Ha had simply introduced thorn i' l * i cise in orrtor to Bhow that Mr Whitalt" J public man, while u member of tho Ante r and to some extent interested in tho Of - ment of the country, was actually & r with tho Government, and ci-mpleting' s actions with the Government, and • - part of the time during the Sosit* a Government was exchanging or selHnjj' r yaWiJ |*p<J». He w*W &r« bob**

-»in relation to the principles on which transactions were founded later on, bnt £ did not think that he should by name •ntiott the transactions any more. After S,« second anticipatory n=mark, that he Ihoald appeal to their sympathies because of Jh» plea of justification having been extn,ieii all he would say was that it was ablotely right the learned Judges, believing Ih. olea was bad in law, should strike the :?«* out. If the pleader, who drew the " m snd argoed the case, had not takea suffiLnt p»i»» *° bring out every minate point which ought to have been provided for in the ntg, then it was right enough that the plea koaid be swept on one side. But he eerily wished to point out this, That a great \!yic officer of the State—an Attorneyfjanersl— in his place in the House of Repre Natives, obtained an order of the Bouse, "ending another person to trial «ho had be" n already brought up to the tor of the House; that the vote of the naiority of the Houss of Assembly Zm obtained to send the person to trial, the rom«e being made that the whole facts L>old be in issue ; that, indeed, the very object was to enable him to clear himself of thoie charges ; and that then, when the case u brought to the trial which was to bring ,-,{ the facts, he had absolutely advised -ith the solicitor for the Crown as to the vary process which shut out the investigation Whose hand was it that had closed the "flhuttera and excluded the light of day in respect to this case? It was not the 'and of the Crowu Prosecutor alone, but #is absolutely—and he would ask them to consider whether it be not so principally—the late Attorney-General's, who had profemed himself in the House and again in the w itae«a-box so very anxious to have all these facts brought out. They had heard ,ometbmg said as to the reason why articles were published in the local press, and the ■nsgestiou was made that certain articles were so published with a view to influence the tiial snd to prejudice the minds of the Jury, becunsa they favoured the defendant as a fullow journalist. But he would wish them to pay no attention to those articles, or to anything said outside the Court, and impartially to consider the evidence itself, the comments of the counsel, and the direction nf His Honor the Judge. He would ask thorn, as it were, to bring their minds, like a ilnte with nothing written upon it, to the consideration of this question, that they might fairly and absolutely fulfil theduties cast upon them by their country, and % lair and true deliverance make between the prisontr acd the Oruwn. But he would dr*w their attention to the fact of the evident sympathy between the leg»I profession and the prosecn tor. Thfy saw one come to give a definition of tie libel, and he would snbnit they conld not fail to see another, taking every p issibte jirtwaution to shut ont the facts of the case, in.t »dviaiDg with the late Attorney General, Mr Whitaker. as to the demurrer being laid. th>» effect, of the demnrrer being to shut out thepteaof justification, and «otodeny tothem and to th'» country at large the proof wHetlwr the facts alleged against Mr Whiter were tnie or false. The effect was that Mr Jones conll simply rely upon the plsa e.f not (rutlty, and cooM not show that the facts ware true, and they would bear him out that he had at>mpted t<> avoid trespassing on t'j»t ground, and had n .t s iu;dit to pat in inane the truth or falsehood of the allegations. Th« sympathy of the profession lor Mr Whitaker w»s e.s.ly undent*d. as he ww the "Idest practitionjr in the country, had seen the birrlt of all the law», had his own name utmost a synonym for Court jjiactJc, Dad s<-en the *pp<-ir»rmeut of the tirst jwlge, had beeu cognisant of alt the m\n of pleadiDg. and had held the highest office which a gentleman practising ac the 'Mfc ram hold oftenor than any other gentlenin the Colony. It was not therefore miriirismg that tbe sympathy of the pro-f-n»iou wa» with him. and th»t whatever iimlil be dons- for him should he d.-n •. if tun bias of journalists was m favour of the ilefeniim*, cert unly that of th* lawyers was wi:h Mr Whit.akar. If, »s> hi* learned friind hail pat it, both parties were on tluir trial, that after having abut the defence out frcm tllu proof of transactions alleged both parties wire on trial, all he would sxy was that they would take up the gag« that had b--oa thrown iinffii, an I would »bi-ie by the decision. H<j would have to apologise to them for taking up a good deal of their time, but he t-ustea th(- apology would be qualified by the coniiileration of the eircunintanc's which made it necessary, The case was one which involved uvterestu of no common magnitude, nut tmjrely to the parti-» concerned, bat to fiti public, to the Native inhabitants, to thn«u who ibsirud to settle on the IsiiiK ami to all who wera interested in the progress, safety, and peace nf the. Colony as a whole. The cirjumstancas which h»d brought the_ case before them wurs ;«s follows: —A Native Unlit Bill was introduced by th* hon. the <UtornnyCeiier.il, mil ho would call their ittiMiiiim to th« fact that the Native Mmtsto seemed t--> have nothing t-> do with Him Bill was introduced m the House ol" iWmoly by Mr F. WhitakT, and was inMuled the 'Native Lands* Court Act, 1577. H'' would ajk them to lo >k over the Bill twlf. Mr ITajnitt objected to the rr-raarks being n."l« by Mr K-ec, as the Bill was not in ivioVno.

Mr Uees : All matters are takon ongni.v iioi) of by the Court that are maUoru of |iHii- history and for iiho public welfare. 'iiey ueril uot be takea in evidence. I do "t intend to givs in cviueuee that the sun 1 shining, or that we are now in a cuurt of i -ticu.

i Hi* ir-mrr : The Bill has been introducr-il |«s i» not paused. We can adm t its bviug I'troiluctcl, but not its character, can we'i M not yo U put the Bill in Mr Whitaker's MWiU ?

.Mr Revs; I did. lam not very desirous I reflecting on the conduct of the case, but ; i» » usual thing for a document to be profor questions to be asked upon it, and "•enramrut to follow.

'tin Uminr : I understand yon that upon Iher grouuds you nay it is a matter of IWory "

I Mr Rees replied that the Bill having been isuiinacil ia Parb'ament, and great attcnkm having been called to it throughout the f'l'my, he considered it was »m»t:er of hiap. ami that it came under the same headWwith facts which were known in history p tits invariable course of nature. As an Rarity he quoted Taylor, and he advised P Wned friend if he had not already read Pylor to go and do so. Mr Haggitt r Thank yoo. I take it in the pe *pi rl e M j„ wa i c h it is s-aid. P'f liees : [ certainly don't think one "talier of tha bur should act derisively to»ms another. Mr H»jjgitt: Is it derisive to ask a mem- ['« the bar if he has read T*ylor T •after a considerable amount of argument, 'Honor rul«d that he moat support the ob•aonfaikett by Mr Haggitt, though he did think it affected Uic matter one way •notaar. •f f Kee» : I trust, gentlemen, you will irom the c induct of tho caae the methods "««. »ru adopted for the purpoae of at"Pnnic *o secure—l am n:>fc supposing—-I * •>'* mauls >cu with the au{>po<uti.ia—- * onvicoiou wnnld ensue, but I trust im m mm(l ttie P- ,iuts » so-called, .." not merely in tho admission of but agmuac the address to the

prfrfgitt (I would ask your Honor »C

it is right that my learned friend should make comments of that kind upon an objection which yonr Honor has held to be good? His Honor : I was hardly paying attention. I was taking a note of the objection. Mr Haggitt: One is bauud to conduct the prosecution to the best of one's ability, and one's ability consists, I suppose, in a knowledge of what the law allows to be evidence, or what might be disc jssed by counsel in addressing the Jury. Amongst other matters, if, in the course of addressing the Jury, he attempts to do things which the law or practice of the Court do not allow, I think it is is the bounden dnty of counsel on the other side to draw the a:tention of the Court to it, and when the Court has ruled, I submit it is not the practice of the Court to allow comments to the Jury upon it, or the conduct of the counsel on the other Bide to be called in question. Mr Raes : I Bhall not answer the remarks made. I can only s»y it is another absolutely new feature in the case, and I presume I am to be subjected to a species of interruptions all through. His Honor: I think it would be well. It is the practice in all cases of this kind to allow the utmost latitude to counsel; and I think it would be well not to insist upon objections, er to criticise too narrowly the ex preasions of counsel in conducting a case. It is better perhaps that the Court should err on the side of allowing too much than too little latitude. If my opinion were }a3ked, Mr Rces, it would be that you have been exceeding the line a little ; but I should feel inclined to allow too much latitude rather than too little. It is better in all respects it should Je so, and that you should not be interrupted nnless there are serious grounds for interruption. I did not catch quite what you really did say. Mr Haggitt: Then, your Hcnor, having called attention to it, and having attempted what I consider my bounden duty to do, I shall, after the expression of yonr Honor, make no further remark at all.

His Honor: 1 would suggest that Mr Rees, or any other counsel in a case of this bind, Bhould not be interrupted, unless there is some really plain reason for doing eo ; and though in ordinary caies perhaps an objection ot this kind might fairly bare been a-iked, I do not thick the Court can draw a rigid line applicable in all cases. I think in gome cases greater latitude must be allowed than in others. I do not feel inclined to ii - terfere so far, but if you see any remark which considerably exceeds what you conceive to be the limits of counsel, that you should call my attention to it. Mr Haggitt: I would simply say this. I df con.M b.r it a great reason for interfering when I Had mattcis introduced, and being treated as in evidence, when they are not in evidence.

His Hcnor : That is a point we have disposed of. Mr Haggitt: And I will only say farther, my learned friend is free to use any language he pleases without interruption from me.

His Honor: That w»s not my intention,

Mr Ree;, continuing his address, said : He would like to place before the Jury what, were the circnnvitances which gave r-s». to the prosecution. Tne Bill introduced byMr Whitaker had for its object the alteration or amendment of the laws relating t-a Native lands and to the Native Lands Court. That public feelinvt in relation to that wa.l greatly aroused they had in evideuce Many petitions were sent t~> the Assembly. It was a fact that the.delibera tious upon the Bill occupied a very consideable time. Thtre was much discussion upon it, and a large amount of public feeling evoked both in the minds of the Native race and of the Europeans concerned. An article in toeOamarUjEvening Mail was then written and published. It was dragged into notoriety by proceedings in Parliament, and created a great deal -A nntse among all c asses o: people throughout New Z;alar.d. The defendant, Mr Jones, was summoned to the Bar of the Honse, aud when aaked what he had to say there, made a statement which was written and read by him. Then there was a long discussion, and a resolution was car ried, by which he was sent for trial. He was called by the Speaker to the Bar of the {{"use aud to'd the ns dution passed, " That tue then Attorney-Genera! was instructed to prosecute Lim according to law.'' Then the prustcutioD commenced. It was instituted in Wellington, Jones was then brought !> fore the Kesider-t Magistrate, and was committed for trial, aud the offence having takm place in the Otago Diitrict the trial >.r.s properly being held hero. He w.iitd crave the indulgence of the gentlemen ;if the Jury f»r some turn-. Though he cou d not ect :r int > the. truth or falsity of the allegation made, ho thought that, without nmfuly wearying them, he won'd be able to show that there were such important interests involved, snd such uin'.ters connected with the pasr/rng of the Native land laws as made anything that would draw attention to it of importance, and that a fair and reasonable comment on the Bill was r.e-.e-ssary f-r the public good. The Attorney-General was bring-ng in a Native laiuh Bill to alter and amend the procedure in Native Lands Courts, and by means of which the Native lands were to pass from being held by Native tenure of hereditary rights under the < peration of our ordinary law. and to bi delivered b.ick to the Natives by Crown vrants. Previous to the r Native land being pajaed throngh the Native | Land Courts no contract in dealing could be ! had with tbem ot all. The Bill greatly affrctr t the Natives, to -what extent it was unnecessary for him to explain. It was sufficient for him to say thty were greatly affected by it, and sj we re- alio* intending European purchasers. The article writ.en by Mr Jones upon it had brought him to the Bar of the House, and it was made, as they would jndge by the quotationsread t a Mr Whitaker, a Ministerial question, and Mr Jones, by a majority of the House, was then Kent to trial. They would see that when a jonrnaHat wrote an article upon the Attornev-General and his motives in bringing alii into tbe House, the House of Assembly took the matter up, ret used to refer it to a Committee ot the House, but referred it to a Conrt of Law, the House it?clf prosecuting. It did not leave Mr Whitaker to his remedy, as any othe jury, or as li« (Mr Rees) would have been left, bnt pledged itself to the prosecution, guaranteed the cost and expenses of the trial, and resolved to conduct the trial against the journalist for having insulted the Attorney-General, and having, it was said, libelled him in the proof his public dn ie;. For_ one moment he would like to ask the attention of the Jury to the manner in which the* Natives were affected by land laws. The Native* bad nothing bat their land, and everything they received respecting them from the Treaty of Waitangi down to the present time showed that nneasiues?, and war had been in fact threatened in relation to the possession of the land. By the Treaty of Waitangi the Natives' land was assured to j them, with all their rights and privileges Some years after an active chief, Te Whero • Whero—who afterwards became King Potatan—looking at these transactions with fear as to what was about to arise, wrot j to the Queen a letter, dated at Auckland, Novem- | ber S*h, 1847, wh=ch was as Joilows : j Madam—Saluting you, great is our love to j yon. We have not forgotten your words and , yonr kind thoughts to all the world. Madam, [ fi»ten to our words—the words of the chiefs of ! Waikato. Lore u», and be generous to no

as Christ haß loved us all. May God cause that you may hold fast your word and we our word for ever. Madam, listen ! News is going about here that your elders (Ministers) are talking of taking away- the land of the Natives without cause, which makes our hearts dark. But we do not believe these words, because we heard from the first Governor that the disposal of our land is with ourselves; and from the second Governor we beard the same words. They have all said the same. Therefore we write to you that you may be Hud to us, your friends that love you. Write your thoughts to us that peace may prevail among the Natives of these islands. Enough are these words.— From your friend in love, Te Whkko Whkbo, and other Waikato chiefs.

This, he believed, was the first correspondence that had taken place between the chiefs of New Zealand and Her Majesty on the subject of their land. At the sitting of the first Parliament of New Zealand, the Maoris gathered round the House to discuss what the meaning of the new Council could be. They did not understand it. They knew they said the " mana " of the Governor and of the Queen, but could not understand what the House was to be, and they feared that it would interfere with, their lands, and determined to test the matter. The chief Thompson was instructed to ask Mr M'Lean for money to build a mill at Matamata, and it was determined upon the result of this request to decide what they should uo. Mr M'Lean was busy when applied to, and nothing was done in relation to it, and at that time the Native people determined to have nothing whaf ever to do with the laws of oar Parliament; they set a line of demarcation, and in fact declared their independence. Up to the present time the Queen's writ d'd not run beyond that boundary, and the Court had no jurisdiction in the Kin£ country. These were facts, anomalous as they might appear, and were facts of history, which went to show the importance of the question involred in the alteration of the Native land laws. Then cams what was perhaps the saddest phase in the history of this country. The Government, desiring to purchase some landatTaranaki, sent EOTie officers down to that place to negotiate. There were tbrje chiefs in Taranaki who claimed ownership of a large block. Two of them agreed to sell, but one—"William Km", positively refused, ' and letters which he wrote to Archbishop Hadfield would convince any one of the sincerity of the man's motives and positive determin ition not to sell or surrender the lmd. The Government, howevi-r. Pr -cesded with the purchase f rim the two chiefs, and took th« 1 and with- • ufc t:e perm s-n'oa of IVm. King. Through sone series of mistakes the Goi-crnnieut per sisfd in ordering the surveys, and seat Eoldirrs down to Taranaki. Tneu the war commenced. W.l hm K : ng's church was burned, lii-i people sho-, -and a disastrous war was begun. The result of ths was felt aftcrwa-di in the South, as they lost some men from the South in the Wa-.kato. Rut, probably, hers they were not so well informed a& to the circumstances of the late Maori war were th> residents in the North Island. On enquiry afterwards, it was found that Wm. K'ng had the right he claimed to the laml, thai; the Queeu's troops n,»d been slaughtered, an i the war commenced through a seriei of mistakes. An atte-npt was mide to restore peice, but it was-too late. The Maoris in the Waika'o had taken up the question and s»id it was evidently det»rmined to take the Maori lands, and so the Waikato War sprang out of the Waitara. It would take him too long to go throngh the history of the Maori land transactions of which they had heard at Hawkes B*y—they were matters of mtoriety and c >JJtn nt, and hn wonld only mention them for the purpose of showing how reasonable was the suspicion iu the minds of the Miori, and how easily it was to arouse in them by theee alterations of the land laws the fpiMt of opposition and of resistance. One Maori, in sneaking to the measure, said if the Bill was passed he wo >l-l leave the House. The M .ori represent »tiv« for the South Island said, "if the Bill was passed, it would be quite time for the Maoris to look out for themselves." What t ; iat meant they might gither. Europeans took part in the debate, and the Bdl was withdrawn by the Govern raent It might be that the article oy Mr Jones hid something to do with this, by its having called public attention to tlu matter ; and if so it snrely ought not to put him in the position of the defendant to an action of this sort, for its effect was a great public good. Here they knew little of the terror and suiT<mng and ills entailed by a Maori war. They had no experience of property lost, of homos destroyed, and friends shot. All these were but simply matters ot" history t > them. Hut to people in Taranaki aud Auckland they were facts. They could see tho graves of their friends who avers murdered. Theycooll runembarthesufFeriogsaad loss of the setfcl* rs. And would the 7 say ttiat a man who woulddo i anything to prevent such another citastrophe i wai doiog simething which would entail : upm him the punishment as a lib-slier ; cr ' should he not be h'.-l 1 up to the admiration of his fellow men? It was only la'ely that *ny Maori members had gone into ; Parliament, and now there were only if< ur of them there ; so that Euro- | pean.s made land Jaws for them. The i .fulgts in the Courts were Europeans, often i«n<r»i.t of the cust>nis and traditions of the Na'ives, and quite ignorant of the hereditary aud complex rules which girded the transition of land from father to son, and from mother to daughter. The Maori A; seasons had .mo voice in the Court, although tlu-y were appointed to sit with the Judge. Tli-n nhen la~d was sold the ygen's were Europeans, and in miny cases not very good characters, and the Maoris were entirely at the mercy of the ng-:nts or interpreters. Then, it the Maori complained of a wrong •lone to him, he was obliged to bring hi.s case before a people he could not understand, or that could not understand him. It was sur.dy natutal under circumstances such as these that the Natives should be much alarmed, and feel great uneasinf ss when it was proposed to amend or alter tne laws which they were just beginning t > understand. They bad it in evidence that the Maoris hid petitioned against the Bill, and that the petitions in favour of _ it required certain alterations. The Maoris were not the only persons who objected to the passing of the Act. and, as they had heard, the Bill was withdrawn. There was then so strong a feeling in the House, so many arguments against it that it was unjust, and t lat it threw all tbo power into the hands of certain parties, aud affordel to capitalists undue facilities as against persons of smaller means, ami the Bill was not thrown cut, but was withdrawn by the Government that introduced it. The next argument upon the disposal of Jones's case was the discm-aion of the Native Ltnns Bill, to which the article in the Mail had such distinct and specific reference. The Attorney-Gene-ral was induced to prosecute tne defendant by a majority of the House, and they must remembt r that the Ministers had great power in the House of Representatives, for while the Miniatry remained in office it must be able to command an absolute majority. Such ia rtMolntion as that then earned by the Minatry was never Known b -fore in any House. It was notaprovisionforlibelgenerally agaiust the House, but was carried on because the Oamaru Mail had insulted or libelled- one of the members of the Ministry. And at that viry time the Ministry, of which Mr Whitaker was a member, had actually libelled their opponents They were not satisfied with being simply prosecutors, but were absolutely defendant, They bad I

libelled their political opponents most foully, and were then upon their trial in Wellington, and were fined £SOO, in addition to about £SOOO coats. Of course the Ministry did not pay that, but made the taxpayers do it. This was the state of things the Jury -were asked to uphold : —That a Ministry should be able to libel its political opponents and then to defend itself at the cost of the State ; but if another accused a member of the Ministry, then the Ministry was to use the funds of the State and the voice and weight of the Legislature in prosecuting him. The Jury must remember they were not simply twelve men called together to consider this, but they represented the country. The defendant wa« brought before his country to be tried, and' they were asked to find him guilty by persons who at the very tim 6 they called this a criminal libel were defending themselves with the moneys of the State in an action of libel, and with the moneys of - the State they were prepared to prosecute the defendant. Mr Whitaker had just told them that he first proposed to prosecute himself. Why did he not carry out his intention? The law Courts were open to all, and why did he not do as any other citizen would have done in the ordinary way? But no ; that would not have done ; that would have entitled the defendant, if the Jury found it w«»8 not a libel, to have turned round and to have claimed damages from Mr Whitaker. But now the country was put to any loss, and Mr Whitaker ran no risk. That seemed to be the rule. Always keep yourselves guarded, strike your opponent as you can, stab him with the daggerof theassassin, minium if you can, especially if you are not liable for the onsequences. If any man libels you, you will prosecute him, but not at your own expense ; always do it at the expense of the State. If these things were to be allowed, a reign of terrorism would exist. One set of men who happened to be in power at the time would be able to wield the whole power of the State to crush their political opponents. That \rould be absolutsly the result if this state of things was allowed to exist. It was customary now to say that juries were no good, and that they ought to leave everything to one or two judges. With all respect to the Judges—to their houesty. attainments, and love of justice—he would say they would be very unwise in giving up the timehonoured institution of the Jury. For the time might come uhen a Miuistry be tyrannic*]; and the House corrupt, and when even the B.meh itself might be venal, and then there would be no protection to citizens ex:ept when twelve ordinary men w. re called to stand a defence and a shield between the arm of power and the person sought to be punished. Mr Whitaker did not himself undertake the prosecution, but chose the safer, if the more ignominious, course of getting the majority of the House to prosecute, and though he told them his wish was to prosecute privately, he bid withdrawn that motion in favour of one which proposed tha". the House should uudertake to prosecute so as to render him safe. If people came into Courts of law they should do it with clean hands, and not like the pres nt co ■ p.' lin-mt, under the circumstances he had detailed ; but should demand the invest ; g*tion of his conduct, and that the light ot heaven might be thrown into every p'ge, and the history of his transactions made known. He should not be found advising with the Crown to shut out this jnstificttion, or saying he did not advise the Cro.vn to bring the demurrtr or to withdraw it. He would ask them if they had ever heard a more diaingeuuous statement or of a more flimsy sham in their lives. The Crown Solicitor was asked in Court in presence of Mr Whitaker for pei mission to enable the defendant to have such an orjportunity as would enable him to put the truth of the whole matters in issue. If any one of the Jury were accused of a ctiine and were to say they wanted the charge investigated, would they then shield themselves behind a legal point and shut the mouth of their adversaries either as to truth or falsehood ? Yet that was absolutely the position which Mr Whitaker occupied. Did they for one moment think that if he desired those facts to be gone into he could not have had the whole case gone into? Witncices had been brought from all parts of the Colony, and now they cuuld not be examined. .Now, whichever way the verdict of the Jury went, it would not say that Mr Whitaker was either guilty or guiltless of the charges preferred against him. In saying this he spoke ia due deference to the ruling of fclis Honor, but he had not the slighto3t doubt that as the plea of justification was put on one side, it left the matter undetermined as to the truth of the charges. Yet the prosecutor had said in the House of representatives and again in the Court that he wished these charges to be investigated; that he came here for the very purpose of going into the truth of these chargei. If the Government were allowed to use such means a3 were no w sought to be used iu this case, no man would bo sa'e. He would be liable to be ruined by a Government using the moneys, a part of which he paid into the -r-iasury. Then th«y had the very sune power which directed the prosecution refusing to receive .the writer's pstition to the House; so that it came t) this : If you petitioned the House on auy public grievance it was tbrowa out; and if outside the House you eriticis.d the acts of mctnbeisor Ministers jou would bo prosecuted, so that neither outside nor inside the House would there he the slightest hope of justice. Mr Wliitaker was called as a witness because it was known ha could not be aaked oae word as to the truth or falsehood of the allegations in the libel, and knew him-telf that not one question as to the justification, the truth, or the falsehood of the libei could be asked. In reference to the law of libel, after alluding to the different kinds of libel which might be charged, Mr Rees quoted Chipf Justice Coburn's remarks in the case of Wason v. Walton, L. It, Q. B , 4 70, as follows ; " Our law of libel haß in many respects ouly gradually developed itself into anything like a satisfactory and setth d form. The full liberty of pub ic writers to comment on the conduct aud moti«cs of public men has only in very recent times been recognised. Comments on Government, on Ministers and officers of the State, mo be s of both Houses of Parliament, on judges and other public functionaries, are now made every d>y, which half a century a<;o would have been subjects of action or ex officio information, and would have brought down fine and imprisonment on the publisher and author Who can doubt that the public nr3 gainers by the changp, and that though injustice may be douo, and though public m n have often had to sm art under a. keen sense of wrong inflicted by hostile criticism the nation profits by public opinion being thus freely brought to bear on thedischargi of public duty, fle submitted lhit thero waß n) malice, no malicious object pr ived, aud nme deducible from the circumstances attending the publicat oa of the article, or from the article itself. In BOme 'nations' the law had actually to be set aside when a man did certain things. He refi rred to the case where the exigencies of the case required it. In this case there'was no private end to serve, and no wish to damage Mr Whitaker. It was simply intended to stop thb passage of a Bill for the good of the community, and was the defendant to be condemned for it ? Of course jt was for the Jury to say, Bat} he

intended to reverse the case. He submitted that the accused was the accuser. The public journal had a duty to perform. It was for the advancement of literature and of art, to gradually build up great national institutions. If a journalist found a pul • lie man about to perform a public wrong it had a right to check it. It was the duty of a paper especially to state what went on in Parliament, and it would be better if papers were more honest in this respect. Mr Jones did that, and said Mr Whitaker was about to pass this Bill—a Bill which would be another swindle. Because he spoke about a swindle, was Mr Whitaker damaged by this? The Ministry had been overthrown probably through that, but was it shown in the slightest degree that Mr Whitaker was injure 1? Every public man in New Zealand during the last two or three years, if people believed what newspapers said, would be considered the most unmitigated rascals. The only tribunal for such a case waß the tribunal of public opinion. It was the duty of the Press to attach what they considered to be wrong, and to point out defects. If the reputation of Mr Whitaker was of so tender a character that this article would blast it, he thought it had better be put up in a glass case to be kept for future use. It woull be sufficient for his learned friend to claim a verdict at the hands of the Jury if ha established one point against him. If the Jury believod one of those things to be true and was actuated by malice, his learned friend was entitled to their verdict. But the article meant that the Natives were being swindled for years past, the papers said a single spark would set aflame, the natives were sending in peti tions signed by hundreds of names, while on the other hand the Government were encouraging capitalists, and large tracts of land were being absorbed, not for the habitation of men, but made great solitudes for sheep, off whose backs rich men might shear a fruitful harvest. They might set Mr Whitaker out of the article altogether. It was nothing to do with it that it said he had enabled s few Aucklaad speculators to perpe trate another swindle. The name was only subsidiary to the article. He f,ubmitted there was no libel at all. He contended that Mr Denniston had imported an entirely diferent libel into the question. Mr Rees then referred to the iunuendos to show that they were not • libellous. It was not libellous to say that if the Bill passed into jlaw it would enable Mr Whtaker to carrj' on the purchase of land. Though it might strike the Jury as being abusive, they would find throughout the article the absence of any malice. If Mr Jones were convicted all he could say was that he had attempted as a journalist, without vindictive motives, to do what public s rvice he could. He was bound to take notice of such a public matter, and to pass comments upon it. Mr Rees then referred to tin liberties of the Pres«, which should be upheld, and said that iu this case it was the Government against the Press. It was tle first instance, so far as ho was aware, in this CoUmv, of the of Assembly, under circumstan 'es lik« this, ordering the prosecution of a journalist, aud certainly th"y might find worse articles than this accusing the probity and honor of public men. lie submitted public opinion would punish an offender more severely than the arm of the law. Already Mr Jones had suffered considerably, aud yet the prosecution were using all their p >wers to further punish him. In the name of public welfare, in the name "f public justice— nothing having been shown to the Jury that the accused hid been actuate 1 by malice—he asked au acquittal. Iu the name of the freedom of the PreßS and of their public institutions he asked it. Having been brought before the Jury, the defendant appeared to them oa various ground', and he (Mr Rees) for him (the defendant) anpealed to them on various grounds, for "Not Guilty." But if he was punished, or committed, he w;is equal to either fate, and he left tint fate to the Jury. An adjournment then took place till 5.30 p.m., when His Honor proceeded to sum up. His Honor, in summing up, said :—Gentlemen of the Jury—The first thing that X. would ask you to do in the present case is to disembarrass your minds of several mat ters that have come before you iu the course of the trial, aud to ask you to c mfine your attention simply to the' indictment and to the evidence which has been brought before you to day. The learned (Jrown Prosecutor referred to certain articles in the newspaper. I need har-lly tell you you must not pay the slig itest atteution to any article in the news piper to which reti rrnee has been made or to auy other. Reference has also been made to previous proceedings in this Court in this particular case. I do not think you ought to draw any inference one way or other from the3e previous proceedings. ■ You ought, it seems to me, to put them out of your minds altogether. The previous proceedings ready appear to me to have no hearing upon tne present issue. Nor have you, iu my mini, to consider the circumstances under which this prosecution was instituted, or thit it was instituted by the House of Representatives on the motion of the Government of the day. You have to treat the matter precisely- as if it came bsfore you in a private prosecution, as if the information had been laid, as omni''nly is the case in criminal cases, by a oolice constable, and you have simp'y to consider what has actually beeu bsfore you, the indictment and the evidence. Nor have you to consider the truth or the falsehood of these charges, and so far as the present enquiry ia coucerned any libellous charges iu the article, if there are any lioellous charges in is, and that is for you to say. these charg.s must be taken to be untrue, because there 's a mode of pleading and of bringing, the truth before the Court ; and that mode, for reasons into which there is no need for you to inquire now, and into which you ought not now toenquire. Forsome reason or other the proper proceedings to bring the truth of the libel before the Court have uot been taken. Those previous proceedings, as I have said, gentlemen, are no* for you toco: sider, ag it appears to me on the present occasion ; though in e»se you find a verdict for the Crown they may possibly be exceedingly material, if addressed to the Court hereafter, as to what punishment should be infl.ctid ; but they ought not, I thiuk, to affect your verdict in the present case. The defendant is charged witiihaving-inlawfully, wickedly, maliciously written, and published a fal. e, scindalous and defamatory, libd against Frederick Whitaker. As I have said, the allegations in the alleged lib-.l must be taken to be f *l-*e. It is not open for tue de oidant to say or to suggest that they are, t ua in the present proceedings. The d.-fen lant is lir.it charged with having written and published, aod caused to le pushed, th:s docu ment, whi ;h is said to be a defamatory lihel. The first thing to which you have to direct your atten ion is the evidence of publicatirn. That the article in question was publi hed by the defendant you can have very little doubt; in fact as much was admitted by the coucs -.1 for the defence. Therefore you have to determine whether or not it was a malicious or defamit iry libel. A libel is that which tends to expose any person to hatred, contempt, or ridicule, ant you have to enquire, in the first place, does this article come within the legal definition of a libel ? Does it tend to expose Frederick Whitaker to hatred, c< n •apt, or ridicule ? Is it, in fact, defamatory ? If it is defamatory, 'hen it is punishable as a libel, aud the deft-ndant would be properly found guilty on the present indictment, uries» ther« i 9 ioine eX3UBe for publishing ft.

A lawful excuse exists for publishing defamatory matter, whera the defamatory matter consists of fair comments on public matters, or on the public acts of public men, and as Mr Whitakcr being a member of Parliament, and being at the time AttorneyGeneral, is a puolic man, and as such his conduct is open to the fullest criticism, and the person who critcises him will not be liable to be punished for defamation unless it can be shown that the person who criticises his act has gone beyond the bouuds of fair comment. That is to say, unless he has ia these criticisms drawn inf • rence of fict for which tiere can be no reas inable foundation in Mr Whitaker's public acts, or in any matter that has bean brought before the public, and is a subj< et of criticism. As I have said comment—the fretst comment—is allowed the Press on the public actions oE public men. And not the Press ouly, bat every person, because a person who hipp 713 to be proprietor of a newspaper has no speci; 1 privilege, but any subject ot Her Majesty has the fullest >ig:>t to comment on the public actions of public men, and to draw what inferences he pleases from thun. And if he houestly believes in the comments he makes, or in the inferences he draws ; and if he has some not altogether unreasonable colour for drawing these inferences and m»Uing the»c comments, then, although the inferences he may draw may be entirely erroneous, or may be contrary to the fact, yes he is privileged. But the doctrine of fair comment, so far as I have been able to ascertain, does not cxt.nd to a statement of specific fads which can in no seine be called a comment Therefore if you find in the pris 116 article a specirie sfcatemeut of facta containing defamatory matter, which can by uo possible ingenuity be said to be in the nature of comment or of criticism, then there is no privilege attached to such a specific statement. That is to say, if a journalist chooses to allege facts, and to make himself responsible for them, the privilege of free discusfiou does not attach to them, if the facts are themselves libellous, he must show they are true. It is not sutnoisnfc that ho reasonably and honestly believes they are true, he must be able to show they are so. With comment) [ have said, it is otherwise. If on any matter fairly before the public, or if from the public acts of public men a journalist draws inferences or makes comments, then those inferences or comments are privileged. Even though they are libellous, yet the journalist is not allowed to be punished for them, uuless it can be shown thatbemade them maliciously, outof peraonalill-wdl, or recklessly, reeklessness being considered equal to peisonal malice. Neither a journalise nor any other person has a rijjh". to recklessly and wantonly assail a perscu's character. Therefore you have to consider in the present article thrse two things. If it contains any direct statement of facti, then if these facts are libellous, if they are defamatory, tending to bring Mr Whi Baker into hatred, contempt, or ridicule, they are in no way privilege.!. But as far as the article consists of comments or criticisms, then those comments or criticisms are privileged, unless th-TC is recklessness in making tiiem ; but if they are wantouly made, the defendant should be convicted. The question of the lib. rty o! the Press does appear to me to arise in the present case not so much in the matter of the case before you, but in the point that I myself reserved. You will remember, I dare say, that Mr Rees, the learned counsel for the defence, wti-heel us to ask pome questions as to Mr Whitaker's private transactions in land, in order to thow, 1 presume, that ttie defendant hid some reasonable ground for making the charges that he did make. I held that evidence was not admissable. A very important principle is involved in whether or not tiiat 1 tiling is correct ; but whether it is correct or not is not for you to say. If it is incorrect, auel you find the defendant gudty, my ruling will be sec right elsewhere, because I ha\e taken c ire to reserve the point in question. So far as I pec, your attention should )e directed to two points. Fiiht, is there in uhe ait cle any statement of facts, not a c >mment or criticism, but a statement tending to briug Mr Whitaker into hatred, contempt, or ridicule. If there is such a statement, it is not privileged, and if it is defamatory, the defendant is guilty of the offence of which he has been accused. But you may noi. consider tie statement of facts defamatory, and you may consider that the libel conshts of comments. And then the question for you is whether those e'laments go beyoud tho bounds of fair comment—that is to say, whether they are justified by the public acts of Mr Whitaker ; and in considering the questcn of fair comment you s oald, itt the' in-st place con-ider th; meaning of the article itself. Jf, in addition to attacking the political character of Mr Whitaker, it imputes to him anything of which any botieht in«i, of whatever party he might happ< n to be, should be ashamed, then the defendant would be punishable, uuless he could shew that ho had s .ins colour for making these comments, —tha they were not wantouly and recklessly made. I need hardly p iint out perhaps to you the delicate nature -J enquiries ol th>s kind. You have on tho one hand to protect the liberty of the Press, because in every trial of this kind where the limits of free diseiusion come into question the liberty of the Press is in some degree involved. You ha\'e to considi r that on one hand, aud on the other hand you have to consider the sacredness of private character, and you have t> adjust the boundary between the t A'o. You have to so regulate your decision that the libirty of the Press m;iy not be cheeked, and at the same timer* ckles3imuutations on private charaottr shall not be allowed to go unpunished. And now, gsntlemeu, I \\i'\ refer to the article itself, and in considering the article you should bear in mwl that it criticises the conduct of a public man, that public men must wr. be too sensitive, and they must be prepared to endure a certain amount of what may be icrmed "journalistic liors -• play," but at the sime time the private character of public men is as s icred as the private character of the rest of Her Majesty's subj cts. If a journalist, from something that is before the public, feels it necessary to comment on the conrluot of public men, and in suoh comments attacks their public character, he has a perfect right to do so. But if in his comments he attacks private .character he would be punishable unless there were some reasonableness for his so doing, whether his comments on the career of the men are fair or otherwise. Whether any particular expressions go beyond the limits of fair comment would naturally depend on the public career of the person criticised. A comment or inference that may be perfectly justifiable in commenting on one public character might be entirely unjustifiable in commenting on another. There can be no hard aud fast rule laid down on this point. Whether the comment is fair depends entirely on the antecedents and public character of the person who is criticised. You have the indictment before you, gentlemen, and you have to determine the question on the whole indictment. Part of the indictment contains what ara called innuendoes —that is to say, on certain pas sages of the article the Crown has placed an interpretation, arid the Crown is bound by that interpretation. You have to fiud that these interpretations are true of the matter in the alleged libel. But they need not all be true.' It anyone of them is true, or if any part of tne alleged libel which docs not contain innuendoß is in your opinion libellous, the Crown is entitled -to a verdict. You have heard (

gentlemen, from one of tho witnesses the view that he took of the alleged libel. Tho aiticle will be placed in your hands, aud it is for you to say what interpretation you place upon it. That is a matter entirely for you. In all cases of libel the law expressly places upon the Jury the duty and privilege of determining whether any particular document is libellous or not. It is the duly cf tho Judge to explain what libel is, but is the duty of the Jury, on looking at the document, to say whether in fact the document is a libel or not. His Honor read tho indictment aud commented briefly on tho several paragraphs. In conclusion, Hiß Honor said : Tfiat, gentlemen, ia the article, and it is for you to siy what tho inciuingof the articlo is; »nd witho t going very minutely into it, I think the course yon should take is this : If you think that there is no imputation in the article, uoth'iiß which can bo said to affect Mr Whitak r's character, other than politically, you should acquit the defendant. In order 10 convict the defendant, you should, I think, bo satisfied tint the olnrges in tho iirticle are sin h that they would not only affect Mr Whitaker's public diameter, but according to their fair construction they wero to place such an imputation as would render him an object of scorn or contempt not only to members of any particular party, "but to honest and upright men of all parties. There should be scmothing, I think, in short, in tho article to affect Ir.s private as well as his mere political character. In order to convict you should be satistied it charges him with doing something which any honest man would be ashamed to do, and, beyond that, you should he satisfied, supposing it does so char).* him, that ihe imputation was made without its being justified by anything that appears from Mr Whitaker's public career, or from anything that vraß properly the pubject of public discussion. You w 11 have observed that I admitted before you in evid nee any matters relating to Mr Whitak. r's public career, or any matters that wero properly before the public or discussion. If, therefore, there is any direct statement of fact in tho article which affects Mr Whitaker's cliaiaeter as an houest man, you ought to find for the Grown whether the defendant honestly and reasonably believed that statement to bo true or not. If, on the other hand, there are statements in the article which may be said to be in the nature of co innont or critio : sui on tho Native Lauds Act, or on Mr Whitaker's public career, and if those statements arc defamatory, and the defendant wantonly made them,'and Mr Whitak r's public career, or mutters before the public, did not give sonic grounds for making tne-m, then als > the defendant should bo pun shed. But if you think tint so far n» the article contains statements of fact, it do -is not affect Mr Whitaker's private character, and thai, so far as the article conbisis "f comui- i.t< the comments do not exceed the bounds of fieo di-cusion, then you should ao put tho defendant. Tho meaning of the article, gentlemen, is altogether for you to de'ermtne. If there ii ;my further point, gentlemen, on which I e:m assist you, I shall hi vei y happy to do so. You will bo kind enough 1 o» to cons dor you:' verdict. The Jury r t red lo outsider their verdict at (i.:iO.

Mr Haegitt said the eiibot (if His Honor's charts as it had goijc t>> the .1 my, was to leave it to them to assume that; there were public acts of Mr Wlr.taker pn-voil before them which might justify tlici in comiugto the condition ihit tlio article wns n. fair eriticij.in, whereas th'.Te were no public acts before the Jury at all.

His Honor : You mean to siy thorn are no public acts iu evidence that would justify an imi.iutai.iou on his private character ''. Mr Hewitt : Yes. Mr Hues objected to the direction suggestc 1. His Honor Baid ho thought hi.i eb.irge wan delicieiit. It must bo admitted on the evidence ;u it .stood, that there waw nothing in Mr Whitaker's public career as brought l>;<foro the Jury to justify an imputation that would distinctly call his private character in question.

The Jury having been recalled, His Hnrnr explained the. p< int i.aised, .and told the Jury liny mutt form tin ir opinion on thu <ividi.ni.-ij of Mr Whit.-iker's public" career that, vas before the (Joint. They oould no. go outiiilu that, and it' they thought by the unmistakeablo s< nn: of She'.article /> direct imputation wan made against his private as well as his pn!>'.io charaet'T, then they would have to consider whether there was any cohmr for making that, imputation in w.iat had been addiu-cil in evidence. U.:s Honor Uimi lv.ad Mr Whitaker'a evidence to thu Jurv.

His ilonor : (J.ui it be naid on thiH [tho evidence] there is anything to .show that thu comineut which clearly ail'eois lib personal diameter would be jiibtili-.-d ?

Mr l.'c-cs: That is for the Jury, I think, yciir Honor, to my, and not for the .Judge. His Honor : There in tlu- preliminary ipuo»tion for Mir. (J.-urt : Is there any evidence 1 Mr Hues : I am sorry for having interrupted the Court, hut I I'hill ask your Honorto take a note of it afterwards.

His Honor : f sJi.i'l be very yla<l to tako a note of it.. I thick 1 am ju'ntilied in .saying —[His Horir.r bore road over the evidtneoji I have directed the Juiy'a att> ntion to Mr Wbitaker's p-.ib'io acts, and if 1 leave them to say wheth-i- from Mr Whitiikor's public; acts as detailed there, tli- re can hu said ,o bo any colour of j'.'.ntitieatien f.ir making any imputation, winch would involve liia private character, I may leave it there. Mr Haggitt : 1 am quite content to leave it there.

A Juryman (Mr L?nry) : Ts tho Bill, called, I think, the Native Land Bill, put in in this caic '! His Honor : It i* not.

The Juror; Then we Btiould leave out con siderution of that Bill.

His Honor : Von must leave it out. Tho Bill itielt was aot put in by the Crown, or by the defence, li put i:i, it should have been put in by tho defence, but it was not put in by them, as to have done so would have given the Ciovvn the right of reply. After the Jury had again retired, Mr Haggitt paid he thought his Honor had one part cf Mr Whitaker's evidence down wrong in his notes. He understood his Honor in reading over his notes to the Jury a minute before, to have it tint Mr Whitaker had said he assisted him (Mr Haggitt) in working up the demurrer points. Tnere was not much in it, but he wished to correct it, as if Mr Whitakcr did say eo he had been misunderstood. He (Mr Haggitt) did not observe it at the time. The fact was that ho (Mr Haggitt) drew up the demurrer points, himself, anil on the rooming they wore to be argued stiowed them to Mr Whitakcr, who agreed with him. Mr Whitaker did not suggest the points to him, nor did ho wish it to be so understood.

At 7.15 the Jury returned into Court. Tho Registrar: Have you agreed upon your verelict, gentlemen ? The Foreman : We hire. The Registrar : How say you, gor.tkman ; is the defendant guilty or not guilty 1 The Foremen : Not guilty. •His Honor: The defendant is discharged. The Court was then adjourned.