The incendiary letter published in The Novascotian that New Year’s Day accused Halifax’s most powerful public officials of corruption. Signed with the pseudonym “The People,” it alleged that each year £1,000 was being looted from “the poor and distressed” and “pocketed by men whose services the country might well spare” – namely the dozen magistrates responsible for governing the city. These officials, the letter alleged, had been fleecing the public “by one stratagem or other” for the previous three decades, a haul of roughly £30,000. It was an astronomical sum in 1835.
The magistrates, furious at being exposed in the press, urged Nova Scotia’s attorney general to launch a libel prosecution. The target of their wrath was The Novascotian’s upstart, thirty-year-old proprietor, Joseph Howe. He hadn’t written the letter – it had been submitted by one of his friends, George Thompson – but this made no difference. As the newspaper’s editor, Howe was responsible for its contents. He was charged with criminal libel, accused of “wickedly, maliciously and seditiously desiring and intending to stir up and excite discontent among His Majesty’s subjects.” If convicted, he faced a heavy fine or a lengthy prison term.
Within weeks, Howe stood before a jury and single-handedly mounted a counterattack. His trial stands as a landmark in Nova Scotia history. No guided tour of Province House, the legislature building in Halifax, is complete without a stop at the ornate library, the scene of this courtroom showdown, where a bronze plaque marks the event. Overnight, the trial made Howe a political force to be reckoned with, signalling the beginning of a political career that would thrust him into the forefront of the battle for responsible government and, later, the fight against Canada’s formation in 1867. The trial also marked the end of the line for the corrupt magistrates whose misdeeds he had laid bare.
Later generations would come to regard Howe’s trial as a watershed, establishing the principle of freedom of the press in Canada. But the case did not rewrite the draconian laws governing how nineteenth-century journalists did their jobs. Howe’s real legacy was showing that one person, armed with a belief in the truth and convinced of the rightness of his cause, could do battle with the powers that be – and triumph.
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In the 1830s, local government in Nova Scotia was in the hands of magistrates appointed by the colonial administration. In Halifax, the colonial capital and largest city, magistrates (this was before lower-court judges assumed the title) supervised the operation of the police department, poor asylum, and other public institutions. Below the magistrates in the evolving bureaucracy were grand jurors – middle-class property owners chosen by lot to keep tabs on the magistrates. By the time Howe became a member of the grand jury in 1832, that body was beginning to take the magistrates to task for the sorry state of many government services.
Howe outlined some of the abuses in the course of his trial. The magistrate in charge of the city prison had turned the institution into his private preserve; he stored vegetables in the cells, stabled his horse in the woodshed, and forced inmates to make shoes for his family. The poor asylum – the last refuge for those down on their luck – received inferior, overpriced supplies under the management of its director, another magistrate. By the latter part of 1834, The Novascotian had begun a print campaign against the corrupt practices of the magistrates. The war of words culminated in the no-holds-barred letter of January 1, 1835.
After the libel charge was laid, Howe consulted several lawyers. They were unanimously of the opinion that he had no defence. The law of the time was clear: publication of anything that was intended to disturb the public peace or injure the reputations of individuals was libellous and a crime. What if the allegations were true? In the eyes of the law, this meant nothing. The sole issue for the jury to decide was whether the libel amounted to a breach of the peace.
Here lay Howe’s only hope. If he could prove his allegations, then it followed that he had not published the offending letter with the intention of breaching the peace. Technically speaking, this was still libel, but it was the kind of argument that might sway a jury. Gathering evidence to support the charges against the magistrates turned out to be easy. An appeal for help published in another newspaper, the Acadian Recorder, did the trick. The next day, Howe recalled, throngs of people crammed his office, “every one of whom had suffered some exaction, had some complaint to expose, or had had justice denied or delayed.”
There’s an old saying that anyone who represents themselves in court has a fool for a client. But since the law was not on his side, Howe decided he’d rather be foolish than give up. If he had “the nerve and power to put the whole case before a jury,” he reasoned, “and they were fair and reasonable men, they must acquit.”
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Newspaperman Joseph Howe stood trial on a charge of criminal libel in 1835 in the Supreme Court chamber of Province House in Halifax. (Author photograph)
The trial opened on March 2, 1835, in the Supreme Court chamber in Province House – a small room that seems larger thanks to a high ceiling. Balconies lined three of the four walls to accommodate spectators and the judges’ bench squatted in front of high windows that overlooked Halifax’s bustling Hollis Street. The room was “crammed to overflowing” with onlookers, Howe noted, and “hot as a furnace.” A number of judges joined the presiding jurist, Chief Justice Brenton Halliburton, on the bench as advisors and observers. From them, Howe expected little. His best hope rested with the jurors, and as luck would have it, five of the twelve had served with Howe on the grand jury. They knew, as he knew, how the magistrates were abusing their positions.
James F. Gray, a senior Halifax lawyer, acted for the Crown and delivered the prosecution’s opening address. “It is impossible for the jury to say there is not sufficient defamatory, malicious matter in this letter to constitute libel,” he said. In other words, their only option was to convict Howe as charged. Another newspaperman was called as a witness to confirm that the letter had been published, but this became a formality when Howe acknowledged he had printed it. The letter from “The People” was then read into the court record, and the prosecutor closed his case. He had only to prove that the alleged libel had been published, and that the words amounted to libel.
Now it was Howe’s turn. He had pored over books on libel law for a week to try to hammer out a defence, and had spent another week preparing a speech to the jury. One observer has suggested he benefited from the lack of professional legal help. Judges have traditionally bent over backwards to appear fair to anyone unable – or unwilling, in Howe’s case – to retain a lawyer. Howe’s biographer, the Dalhousie University political scientist J. Murray Beck, pointed out that a lawyer would have been limited to arguing the law, which was definitely not on the side of this accused. Howe could “come up with an unorthodox defence and, as a layman, be given wide leeway to use it.”
He did. For more than six hours Howe marshalled his case, turning the courtroom into a forum to expose fresh examples of abuse among the high and mighty. He cited case after case of corrupt practices by the magistrates, singling out some of the worst offenders by name. Those with ringside seats to the trial made no secret of whose side they were on – Chief Justice Halliburton was forced to ask spectators to keep their applause to a minimum. Then Howe took his arguments to a higher plane. He pleaded that Nova Scotia’s newspapers should receive “the same rational protection” being afforded the press in Britain, where juries were less likely to hand down libel convictions when official corruption was exposed.
“Your verdict will be the most important in its consequences ever delivered before this tribunal,” he predicted, challenging the jurors “to leave an unshackled press as a legacy to your children.” It was a masterful performance, all the more remarkable because Howe, to that point, had rarely spoken in public. One juryman was reportedly moved to tears.
A plaque at the foot of Howe’s statue outside Province House portrays his rousing speech to the jury. (Author photograph)
Howe’s long speech made it impossible to finish the trial that day. Next morning, Attorney General Samuel Archibald summed up the Crown’s case. If ever there was a tough act to follow, this was it, and Archibald made no attempt to match Howe’s oratory. He warned the jury that much of what they had heard the previous day was hearsay – second-hand evidence – and no lawyer would have been allowed to go to such lengths.
Chief Justice Halliburton, the target of some of Howe’s journalistic barbs in the past, left no doubt where he stood as he closed the case. “In my opinion the paper charged is a libel, and your duty is to state by your verdict that it is libelous,” he bluntly told the jurors. But, he added half-heartedly, “you are not bound by my opinion. You are not to be influenced by my feelings, but to pronounce upon the case before you according to the sober convictions of your own minds.”
It took the jurors just ten minutes to apply their “sober con-victions” and return a verdict of not guilty. Cheers echoed through the Supreme Court chamber and the celebration spilled onto the snow-covered streets of Halifax. Supporters formed their sleighs into a victory parade. But there was little joy among the city’s scandal-tainted magistrates; within days of the verdict, six resigned. The post was so thoroughly discredited that the government had a tough time finding anyone willing to take their place. Howe had solidified his reputation as champion of the common man. His gutsy performance in the courtroom was the springboard for a political career that would one day lead him to the premier’s office.
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“It is often stated that Howe established the freedom of the press through his acquittal,” Beck wrote of the trial. “This is a myth that has little basis in fact.” Howe did nothing to discourage the myth-making – in the first edition of The Novascotian published in the wake of the trial, he boldly declared that “the press of Nova Scotia is free.”
Some historians jumped on the bandwagon and gave credence to Howe’s inflated view of the trial. Wilfred Kesterton, in his history of Canadian journalism, described Howe’s trial as “the most momentous freedom-of-the-press precedent” of the early nineteenth century. But the case of The King versus Howe did nothing to ease the strict laws that governed what newspaper editors could publish without risking a criminal prosecution. A 1980s report of the Law Reform Commission of Canada, which called for the abolition of the outdated offence of criminal libel, traced the development of Canadian libel law without even mentioning Howe’s finest hour.
“The law is not changed by the verdicts of juries,” explained Joseph Chisholm, a Nova Scotia chief justice who was among Howe’s greatest admirers. But, he acknowledged, “it is sometimes disregarded by juries in their verdicts.”
An accommodating jury rescued Howe, but his brilliant defence left a legacy even though the verdict did not rewrite the law. The trial showed the folly of using the criminal courts to stifle dissent in the press. By prosecuting Howe, the government unwittingly gave him a public platform to hammer away at the corrupt practices of the magistrates. And the jury’s acquittal served notice that the public would not tolerate such abuses.
Howe’s prosecution was not the last for criminal libel in Canada, but it undoubtedly helped speed up the trend toward settling libel claims through the civil courts, punishing libellous press reports with awards of monetary damages rather than the spectre of prison. A lawsuit was still an effective check on the printing of unfounded allegations, though. Howe’s successor at the helm of The Novascotian, Richard Nugent, was bankrupted by damages awarded in a series of libel suits in the early 1840s.
While Howe did not change the libel law, the law was changing. In 1843 the British Parliament passed an amendment allowing newspaper publishers to claim the truth of a statement as a defence to libel, providing they could show the statement was published for the public good. It would be another three decades before Canadian lawmakers followed suit and enacted similar provisions. Libel is still on the books as a crime in Canada, despite the Law Reform Commission’s recommendation that it be abolished. But thanks to Howe’s bravery, it has been decades since the criminal law was used to try to silence a journalist.