fIBIDAY, DEOEMBBB 2, 1881.

Timaru Herald, Volume XXXV, Issue 2246, 2 December 1881, Page 2

fIBIDAY, DEOEMBBB 2, 1881.

" A mobs vile organ (Timarv, EeraldJ never existed. It got its bread by eril speaking, and its drink by lying and slandering." . Such were the disgraceful words spoken at the Timarn hustings on Tuesday last by Mr Richard Turnbull, a candidate for parliamentary i honors. In our ignorance of the technicalities of British law, we assumed yes- • terday that the speaker of this abomin--1 able language could be brought to account, and be made to answer m & > criminal Court pf Justice for making use of it. On consulting our solicitor, however, on the matter, we find that ' words such as these are not a " legal libel," because forsooth they were spoken, and not written. We cannot aver we hare suffered the smallest damage m our business through Mr Turnbull's unprovoked slander. The damage is rather on his side, and unless we chose Ito meet Mr Turabull on points other

than the one designated, and engage m a coitly lawsuit, we are powerless m the matter. lie jeu ne vanl pas la chandelle, and we should be throwing money awaj on a worthless object. We cannot afford to do this, and it would be foolish were we to do so. Our criticisms on Mr Turnbull throughout this electioneeringcampaignhavebeenstudiously moderate, and never once have they transgressed the bounds of journalistic etiquette. As a public man seeking a public position, he was fairly open to public criticism by a public journal. He hat answered that criticism by abuse which would lead one to suppose that his early life had been pasted m the neighborhood of Billingsgate. The shameful language carries with it its own condemnation. It condemns him once for all as an eligible member for Parliament; it condemns him socially as a man who from the position he holds was supposed to possess somewhat of the culture and the breeding of a gentleman j and it casts a slur more or lets on the party m the electorate who hare chosen him as their representative and mouthpiece. Excuse Mi' Tumbull's conduct as they will, we defy his best, friends to feel the same for him as they did prior to that lamentable exhibition he made of himself on Tuesday. That he was the fittest man to represent Timaru, m Parliament must then have received the rudest of contradictions, and the thought must arise that, anyone who was such an adept m high -class slang, and bo forward to accuse a political opponent of the worst of social offences, m the tone, mannei-, and language employed by Mr Turnbull, was not exactly the kind of man to i - epresent a constituency m Parliament. Unfortunately, as the law at present stands, men of Mr Tumbull's stamp can publicly villify anybody they choose without fear of the consequences. It is a delightful privilege certainly. It is the fii'at time since Timaru was a constituency that the opportunity has been taken advantage of. For the sake of the good ntuno of the electorate, we trust it will be the last. The following are some extracts from " Folkard's Law of Slander and Libel," bearing on the present case, and showing the exact law on the matter. In page 155 : — As to thojo libels which by holding a person up to scorn or ridioule, and, still more, to any Bfcronger feeling of contempt or execration, impair him m the enjoyment of general society, and injure those imperfect rights of friendly intercourse and mntual bonovolenco, which man has with respeot to man, it is chiefly m this branch of libels, that the action for words" spoken, and for words written, substantially differ. The oommon law, m respect to onr natural passions, gives no action for mere defamatory words, which it considers at transitory abnse, and not having substance and body enough to constitute an injury, by affecting the reputation. It confines, therefore, the action for slandor, to such of the grosser kind of words as impute positive crimes, or by oharging a man with contagious disorders, tend to expel him from society, and to words which injure him m his profession and calling. It does not consider mero words as amounting to a provocation to a breach of the peace ; and thorofore gives neither indictment nor information for unwritten slander, except m the case of soditious language, or words reflecting on a magistrate m the immediate execution of his office. The reason of the law m this distinction is simple enough. It was necessary to punish the grosser and more palpable injuries, and it was equally convenient to pass over the le»s. The law, therefore, by classing the greater injuries, established the criteria of this distinotdon and adhered to it closely m its practice. This reason however ceases, when the words, by being written, can no longer bo considered as the result of transitory passion or venial levity, but therein gain the shapo and efficacy of a mischievous malignity. Tho act of writing is m itself an act of deliberation and the instrument of a permanent mischief. What before was mere convitium and contumely thereby grows into a deliberate charge and acensation. The law, therefore, both with respeot to the pnblio peace and the prevention of private injury, allows an indictment and information as woll as an action on tho case, for words written, which it denies for words npokon. And again, to show what hard names a newspaper can be called, without a chance of legal redress, we quote the following (page 233) : — In the case of Heriot v. Stuart, the defendant, who was printer of » newspaper callod The Oracle, published the following passages concerning The True Briton newspaper, of which the plaintiff was proprietor : — Times v. True Briton. In a morning paper of yesterday was given the following character of tho True Briton : — that it was tho most vulgar, ignorant, and scurrilous journal ever published m Great Britain ; to the above assertion we assent, and to this account wo add, that the first proprietors abandoned it, and that it is the lowest now m circulation ; and we submit the fact to the consideration of advertisors." It was held by Lord Kenyon, C.J. (at Nisi Prius) that no aotion was maintainable for the assertion that tho other paper was the most vulgar, ignorant, and scurrilous journal ever publiahod m Great Britain. But that tho subsequent words, alleging that it was tho lowest paper m circulation, were actionable, since they affected the sale of the paper and the profits to be made by advertising. TVe are quite aware that by giving the above quotations from English law books, we are putting a weapon m the hands of our late detractor, Still, for all that, we think it is desirable that the public should know exactly the position of a newspaper and of a private individual m a matter of this kind. Anyone knowing beforehand that he could with impunity Blander an opponent from a public platform, will do so henceforth with the knowledge that society would brand such a man as a coward, for attacking where no defence can be made excepting by the cumbrous and costly process of civil action. Anyone with an atom of generosity m his composition would naturally hesitate to commit himself to so unworthy an action, even if provocation had been given him, but when no provocation existed, then the social crime would be great indeed. ♦ A most amusing illustration of the difficulties attending the working of the system of trial by jury m a young community, occurred the other day at a sitting of the Court of Quarter Sessions at a back-country town m Victoria. Two men were charged with sheepstealing, and to any ordinary intelligence, the evidence against them was as clear as daylight. Tet the jury could not agree on a verdict. They were accordingly locked up all night, but m the morning the foreman reported that there was still no chance of theiv agreeing. The üßual course under these circumstances is for the Judge to discharge the jury, by which means the prisoner commonly gets off scot-free. On this occasion, however, there was a gentleman on the Bench who thought more of justice than of forms. Judge Docker is a thorough original, and the manner m which he dealt with this caie is probably unique. He first gave the jury a severe lecture on the crime of perjury, which he infoi'mcd them they were guilty of m seeking to return a false verdict ; and then, dropping generalities, he came straight to the point, " I noticed from

the opening of this case," he said, " the face of one juryman who, I felt convinced, had made up his mind to acquit the prisoners, whatever the evidence might be. He himself will know whom I am referring to. In olden times there were twelve men assembled togethex 1, and they were told ' one of jou ia a deril.' They kept asking one another • Is it I ?' None of them knew who it was but one, and that was Judas Iscariot!" The Judge then ordered the jury to be locked up again, and within an hour Judas gave m and. a verdict of "guilty" was promptly returned. The Argm says that Judge Docker's peculiar plan of forcing a verdict " prevented a serious failure of justice or an undesirable delay m the punishment of notorious offenders." This reminds us of a story about a well-known New Z-..:'land politician and litterateur, which, unlike scores of good itories about the same person, ha« the merit of being literally true. It wai m the old digging days of Victoria, and the case was the common one of horsestealing. There was no mistake about it. The prisoner had been caught flagrante delicto. Either the man had stolen the horse or the horse had stolen the man. There was no defence except a sullen denial. The jury, of whom the author of Wild Will Enderby was foreman, retired to a tent to consider their verdict. The foreman " supposed they were all agreed," and so they were at first, all except one. This one, however, scouted the idea of a verdict of "guilty," and boldly declared that " Bill was a mate of his and he wasn't going to see him. lagged all along of a horae, not if they stopped there for a week." This appeal had a visible effect on the other jurymen, most of whom, probably, had a warm fellow-feeling for Bill. They were quite ready to return a Terdict of "not guilty," and anyhow, they hoped there would not be any unpleasantness, because time was time m those golden days. The foreman was up to the mark, however. Addressing Bill's " pardner," he said, " You scoundrel, you admit that the prisoner is guilty, and yet you refuse to find a verdict according to the evidence, because he is a mate of yours. Well, you're just fit to be matei, and it's a pity to part you. If you don't agree to a verdict of ' guilty ' m two minutes, I'll go back into Court and tell the Judge what you said." The conscience-stricken juryman knew what that meant. He knew well enough that the Judge would send him to Melbourne handcuffed to his " mate." He surrendered at discretion, and Bill got seven years. Trial by jury is the strongest bulwai-k of British liberty, but it works out rather queerly sometimes, and it's hard if a poor man can't depend on a friend at a pinch.