The Indictment for Libel
and Mr. Howe’s Defense
Mr. Howe’s Defense: (March 2, 1835)
My Lords and Gentlemen of the Jury,
I entreat you to believe that no ostentatious desire for display has induced me to undertake the labour and responsibility of this defence. Unaccustomed as I am to the forms of courts and to the rules of law, I would gladly have availed myself of professional aid ; but I have felt that this cause ought to turn on no mere technicality or nice doctrine of law, but on those broad and simple principles of truth and justice to which an unpractised speaker may readily appeal, and which an impartial jury can as clearly comprehend. I have felt, besides, that if the press is to be subjected to a series of persecutions such as this, it is indispensable to the safety of those who conduct it that they should learn to defend themselves.
Believe me, also, that the notoriety and excitement of this proceeding are foreign to my taste. Men of my profession, whose duty it is to mingle in public contests, and while watching over the general interest, to wrestle with those who menace or invade, are too often reproached with the invidious tasks they perform, and suspected of a morbid fondness for contests into which they are impelled by a sense of the obligations that public faith and common honesty call on them to discharge. Those who know me best well know that I would rather give the little leisure that a laborious life affords to my books and my fireside-to the literature that ennobles, and the social intercourse that renders society dear, rather than to those bickerings and disputes by which it is divided, and by which man is too often, without sufficient cause, set in array against his fellow-man.
But, my Lords and Gentlemen, while this is my disposition, and these my favourite pursuits, I have too strong a sense of what I owe to my profession and to the well-being of the community in which I reside, to shrink from any peril-from any responsibility or toil, that the vital interests of these impose. I have never done so-and though often sorely beset, and mentally and physically, if not legally tried, I have endeavoured at all hazards, and sometimes against fearful odds, to keep on a course of consistent public duty, from the even line of which no consideration could sway me to the right or to the left. In obedience to that sense of duty I now stand before you to answer to the charge contained in the indictment which has been read and explained to you by Mr. Gray. To that indictment I have pleaded Not Guilty, and I am now to explain to you why I conceive that I have been harshly and yet innocently arraigned.
And here I may be permitted to thank Heaven and our ancestors that I do not stand before a corrupt and venal court and a packed and predetermined jury to contend against those horrible perversions of the constitution and the law, by which justice and common sense were formerly outraged, and by which many an innocent and virtuous man has been cruelly condemned. Aided by the talent and the independent spirit of the English bar, and by the intelligence and determination of English juries, the press has long since achieved a triumph which, without placing it above the law, or endowing it with any mischievous privilege, has formed its chief security and defence. Formerly, in cases of libel, instead of the jury being called on to give a general verdict, founded on their own view of the law and the facts, they were directed to determine only whether the matter in question had been published by the party arraigned; and if it had, the judge assumed his guilt, and a wicked minister often awarded the punishment. But, thank God, those days are passed. Such a prostitution of judicial power can never occur again under the shadow of the British law, for no jury within the wide circle of the empire would submit to such an infraction of their privilege, even if a judge could be found daring enough to attempt it. Men charged with libel are not now to be tried by the mere fact of publication, nor even by the tendency of what they print, though that may be most evil and injurious, but as they are tried for all other crimes-by the intention, the motive, with which they committed the act. If, in resisting a burglar, I knock my friend upon the head, I cannot be convicted of crime; and if, in opposing a public robber, I utterly destroy his reputation by the exposure of his malpractices, the jury try me by my motive, not by the severity of the infliction, unless the punishment be utterly disproportioned to the crime. Nay, if in performing this justifiable act, I, without any bad design, inflict some injury on the innocent, the jury have the right, on a careful review of my conduct, to balance the object in view against the unintentional evil, and to give me a discharge.
To fix and determine these principles cost years of litigation and legislation, and although our hearts might be nerved, and our feelings sublimated, by turning back to the fiery ordeals through which they passed, I will not now occupy your time with references that I know the clear and distinct direction of the bench will render unnecessary. Their lordships will tell you that you are the sole judges of the fact and of the law; and that although every word of what I have published were false, and its tendency most injurious, that you are to try me solely by the motive and intention by which I was controlled. Nor, gentlemen, were such the case, would I be afraid to be so tried; even then I would rely on your firmness and sagacity, confident that you would vindicate your rights and do me justice. And if, in a situation of so much greater peril, in a position ten thousand times more invidious, I could appeal to the court, the jury, and the law, with how much more security and confidence may I not only rely upon your verdict, standing before you as I do, for publishing what, had the opportunity been afforded, I would have convinced you was true, and the tendency of which has been and must be most salutary and beneficial.
And here may I not ask if it is not a most extraordinary thing that men whose conduct has been publicly and fearlessly arraigned-that men who pretend that they have been injured, and that an ample investigation is indispensable in order that their characters may be cleared-should have brought their action in such a way as to defeat the very object they pretend to have in view? If they were serious, why did they not bring their action on the case, lay their damages, and submit their administration to the most ample inquiry? But they have chosen their course, they have made their election, and depend on it they shall have the full benefit of every advantage it affords. Shortly after the publication of the letter recited in this indictment, a notice appeared in The Halifax Journal requesting the public to suspend their opinions until the magistrates could come forward and prove the falsity of the charges in a court of justice. The public have suspended their opinions; you gentlemen of the jury have doubtless suspended yours, waiting the promised proof; and now you see the way in which it is to be given. Could you be convinced of their innocence, unless I were permitted to bring evidence-why, then, have they brought their action in a way that renders that impossible? Why have they not afforded the means indispensable to a calm and enlightened review of their public conduct?
Gentlemen, they dared not do it. Yes, my Lords, I tell them in your presence, and in the presence of the community whose confidence they have abused, that they dared not do it. They knew that "discretion was the better part of valour," and that it might be safer to attempt to punish me than to justify themselves. There is a certain part of a ship through which when a seaman crawls, he subjects himself to the derision of the deck, because it is taken as an admission of cowardice and incompetence; and had not these jobbing justices crawled in here through this legal lubber hole of indictment, I would have sent them out of court in a worse condition than Falstaff’s ragged regiment-they would not have dared to march, even through Coventry, in a body. [Laughter and applause, which were suppressed by the court and officers.]
How different has been their conduct and mine. They have shrunk from inquiry, though they have strained after punishment. I have in every shape dared the one, that I might, so far as lay in my power, be able to secure the other. They have filled every street and company where they appeared with complaints of falsehood and injustice. They have crammed the newspapers with libel cases to mislead or overawe. They have taken six weeks to determine on this prosecution, leaving their adversary but a few days to prepare; and finally, they have brought their action by indictment, well knowing that the court could not admit evidence but on the side of the Crown. Does this look like innocence?-is it candid?-is it fair? Can a body against whom grave charges have been preferred, present this mockery of an investigation as a full and sufficient answer to the public? How different has my conduct been. From the moment that I heard of this prosecution, I refrained from all publications that might by any possibility influence the public mind. I have neither sought to deprecate the wrath of their worships, to excuse, to justify, nor explain. But I have taken every pains that the even course of justice should not be disturbed, and now, instead of seeking an escape by objections to the indictment, or cavilling at the insufficiency of proof, I fling myself fearlessly into the contest; and, so far as I can, shall endeavour to make even this one-sided prosecution of some public utility by defending myself on the broadest possible grounds.
Had their worships brought their action on the case, whether they or I were worsted would have been of little consequence-the truth, the whole truth, and nothing but the truth, would have been elicited in the course of the examinations, and the public mind would either have been satisfied of their guilt, or have been soothed and tranquillized by the most convincing proofs of their innocence. Were I to imitate their disingenuous example, no public good could possibly arise. But they have driven me to the wall; they have sought to punish rather than explain-to silence rather than to satisfy. They have sought by fine and imprisonment to break the spirit of their accuser, rather than to clear their characters by a fair and candid trial. They have placed me in the unpleasant and invidious position in which I stand; before me this august tribunal-behind me the county jail, and the consequences be upon their heads. If this trial tortures them much more than it tortures me, they have themselves to blame. While they wince under the lash, let them remember they knotted the cords for me-that they, a numerous and powerful body, leagued themselves against an humble individual because he merely performed a duty which they knew he could not honourably avoid.
In the trial of indictment for libel, as their worships the magistrates very well know, the defendant is not allowed to prove the truth of his publication, and therefore is cut off from what, in an action on the case, is often his strong ground of defence. But he has the privilege of explaining to the jury anything which may illustrate the motives and intentions by which he was influenced, to satisfy them, that so far from wishing to provoke a breach of the peace-so far from incurring the guilt of which he stands accused, that his motive was praiseworthy, his intentions honourable, and his act demanded by the circumstances in which he was placed. This privilege I shall now proceed to exorcise. It is one that the court will not deny, as it is so essential to the safety of persons similarly accused.
The first question which occurs to a rational mind-the first that an impartial juror will ask himself, is this-what motive could the accused have had for attacking a body, in the ranks of which were some of his own relatives and personal friends; and which embraced some of the leading men of the principal families in the place, whose support and countenance might be of essential service-whose enmity it would be impolitic if not highly injurious to provoke? What interested or malicious motive could I have had? Gentlemen, I had none. With nearly all the individuals assailed, I had been on friendly terms for years; to some of them I was bound by nearer ties; with no one of them had I ever had altercation or dispute. I had for those that are really estimable among them, and in spite of this persecution I still have, the most unbounded respect. But this only extended to their private characters. As magistrates, having the guardianship of morals and the public peace; as the legislators of the county; the collectors and dispensers of its revenues; the trustees of its property; the auditors of its accounts; the almoners of its establishments, I knew them, as you know them-as almost every man in the community knows them, to be the most negligent and imbecile, if not the most reprehensible body, that ever mismanaged a people’s affairs. Had I not believed this to be the fact-had not the concurrent testimony of thousands in the community impressed it strongly on my mind-had not the just complaints of those who were daily injured by the gross neglect of duty on the part of some, and the still grosser malversations of others, continually resounded in my ears-had not my own experience and observation, and the reasoning and calculations of much shrewder minds, furnished abundant proofs-had not grand jury after grand jury arraigned the system which they upheld-nay, had not my own labours as a grand juror abundantly convinced me that these charges were true, I should not have been standing here to-day to speak in my own defence, for I would not have dared to publish the letter in which their conduct was censured and exposed. And can they be so blind and weak as to suppose, that by punishing a printer, even if that were possible in such a case, the public, for whose benefit their doings were unveiled, can be hoodwinked and deceived? Can their characters, like the religion of Mahomet, be propagated by persecution? They may expect much from the result of this trial; but before I have done with them, I hope to convince them that they, and not I, are the real criminals here; and I shall be mistaken if it does not prove the downfall of their imbecility-the grave of their corruption.
You would have been amused, gentlemen, had you been in court on Tuesday last, when this grave body marched in, with one of their number at its head, who, with amazing power of face, read a resolution to their Lordships, that had been passed at a meeting of the sessions, the purport of which was that they were most anxious that Mr. Joseph Howe should be allowed to bring evidence, in order, if he could, to substantiate the charges contained in the libel. The prosecution had been commenced at their instance by the Crown officers-a bill of indictment had been found-and his lordship dared not, for his head, vary the rules of law by which the issue was to be tried; when in marched this immaculate body, with the modest request that the rules of law should be broken, the principles established in reason and experience overturned, in order that that might be done, which they had previously taken every pains to prevent. Did this look like conscious innocence? Were there not some legal minds connected with that body, who knew that such a mission must be fruitless; who could have explained the nature of the law, and prevented that extraordinary exhibition? If it proceeded from ignorance, what must we think of the sagacity of the body-if it did not, what else was it but a most barefaced attempt to deceive? It appeared to me as if they had loaded a field-piece, presented it at the breast of their foe, whom they had tied to a stake, and having lighted the fuse, gravely took off their hats, and making a very polite bow, begged that it would not go off, till he had got behind his wall. But before I have concluded, I hope to put them in the situation of the unfortunate Irishman, who, to prevent the explosion, crammed his wig into the muzzle, and give them a "hoist with their own petard." [Laughter.]
I must again express my regret that they have not taken another mode of trying this question. I wish that he who read the resolution on Tuesday before their Lordships had brought his action for damages. If he had, he would never have come here again to torment their Lordships with resolutions; or, at all events, when their worships took the field against the press, they would fight under another leader. If they really had no legal advisers in this matter, they might themselves have learned from Blackstone "that law is a rule, not a sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal." But I believe that they have been so much in the habit of departing from all law in their own brick temple, that they thought there was not a court in the country where it might not be dispensed with to suit their particular views. I am happy that there is not only a court above their power, but that a jury also comes between them and their intended victim. Holt, and some of the older authorities, hold that the sessions may take cognizance of libel; if so, I rejoice that their worships were not aware of the fact, for had they got me within their power, to be dealt with by their law, they would not have allowed me the privilege of addressing you.
In conducting this defence, I do not mean to say, and if I read the law aright, their Lordships cannot permit me to say, that the charges in the paper published are true. The truth would be no defence in a criminal action, as the magistrates very well know or they would not have brought it; but I shall be permitted, and it is my duty, to show you the state of my own mind at the time I published the letter, in order that you may judge of my guilt or innocence -ascertain my real motive and intention, and decide whether I deliberately did that which would tempt to a breach of the peace, or was labouring to restore and preserve it. This is my duty to you; your duty to me is to try me as our Heavenly Father tries us, not only by the acts we do, but by the purity of our hearts.
Although upon the issue of this trial, the declaration can have no bearing (as the law makes me responsible for what I publish) it is perhaps due to myself to state, that I did not write one line of the letter mentioned in the indictment. I never advised the preparation of it and made no alteration of, or addition to it, so far as my memory serves, and this I state upon my honour, as I would declare upon my oath. But when the letter was sent to me, I did not hesitate to insert it; because although many might be startled by the broad and general assertion, that so large a sum as £1000 a year had been taken from the pockets of those who ought never to have paid it, I had satisfied myself, and if the opportunity were afforded, I would satisfy you, that by the neglect, incompetence and corruption of the parties charged, we have been annually despoiled of a much larger amount. And strong in that belief, I published the letter, and should have betrayed the trust I hold, had I caused it to be suppressed.
Though I shall not seek to discover any flaws in the indictment, permit me to turn your attention for one moment to its language. I am aware that words that sound awkwardly in common use often creep into legal papers; still I cannot but think that, though the preface to this might be very appropriate, if I were found raising an armed insurrection against His Majesty’s Government, it is greatly strained, inasmuch as I have only rebelled against the majesty of the sessions. "The jurors of our Lord the King upon their oath present, that Joseph Howe, late of Halifax, in the County of Halifax, printer, being a wicked, seditious and ill-disposed person, and being a person of a most wicked and malicious temper and disposition "-now of all this I do not complain; though it sounds harshly, it is I believe the usual form; and were there nothing more, I would leave you, gentlemen, many of whom have known me from my childhood, to judge of the maliciousness of my disposition; but there is another passage, which seems to have been introduced to stigmatize and defame; and which, though it may be believed by a few persons about the sessions, will find no echo from your box or from this country. It is further set out that being such person as aforesaid, and "greatly disaffected to the administration of His Majesty’s Government in this Province, and wickedly, maliciously, and seditiously contriving, devising, and intending to stir up and excite discontent and sedition among His Majesty’s subjects," &c. If this were true, I should consider it hopeless to trouble you with any defence; but for a full and sufficient answer to the charge, I may safely refer to what I have written, and you gentlemen have read. If I have preached sedition, you have encouraged me by your favour and support; the country by which I am to be tried has rebelliously responded to my opinions. I might, therefore, leave this language to pass for what it is worth, but I will just turn to one of my sermons on sedition, and contrast it with the character drawn of me here. In the file of The Nova Scotian for 1830 there is one of them, under the head of "England and her Colonies," which commences thus:
"When we hear the cry of disloyalty and disaffection raised in this colony as a more full development of the powers of public bodies calls for a salutary reform; or when the people are roused by encroachments to drive local rulers within the circle of public safety, we cannot but smile at the cunning of those who, as they fail to satisfy the reason, seek to operate upon our fears."
The object of this article appears to be to prove, "That there does not exist within the wide range of the British Empire a people more proud of the name and more attached to the Government of England than the people of Nova Scotia." This seems to be a strange text for a sermon on sedition. But observe, I further declare that I have "a well-grounded conviction that the foundations of loyalty to Britain, in the only sense in which that term ought to be used, are laid deep in the hearts of our countrymen, and are not to be overturned by those petty contentions which may attend the improvement of our local government, or which are inseparable from the very resistance that a free people will, on all occasions, offer to the folly or encroachments of their rulers."
After showing of what elements our population is formed-that a part of it springs directly from the loins of the loyalists, and a larger part is made up of emigrants from the British Islands and their descendants, who find here "no circle of citizenship into which it is necessary to force an entrance by a renegade abuse of England and her institutions," it proceeds:
"But there are other grounds of attachment to England besides a direct descent from those who have been born upon her soil or those who have suffered expatriation in her cause. Though the blood of Britons flows in our veins, that would be of little consequence, if everything else did not conspire to keep their spirit alive in our bosoms. The language which we speak, like a noble stream, has come rolling onwards from the days of the Saxon Heptarchy down to the present time, becoming in every age more pure and more expressive, bearing along the treasures of mighty minds and sparkling with the coruscations of genius. Of that stream we are taught to drink from our childhood upwards; and in every draught there is a magic influence, turning our thoughts and our affections to the hallowed fountain from which it sprung. For enlarged and cultivated views-for the truths of natural, moral, and political science we are indebted in an eminent degree to the statesmen and philosophers of Britain. Our souls are stirred by the impassioned eloquence of her orators and our feelings and taste are refined by the high inspiration of her poets. Nor does any servile feeling mix with our participation of those treasures. They are a free gift from the founders of the British empire and the fathers of British literature, science and song, to the children of that empire and the inheritors of that language, wherever their lot may. be cast. They are as much the property of a Briton by the banks of the Avon, the Hillsborough or the St. John, as by the Liffey, the Tweed or the Thames."
Having stated the reasons why these strong impressions, many of which were cherished by the old Colonies, can never be effaced by any such train of circumstances as attended their unfortunate struggle, the disseminator of sedition goes on; and although the extract may be tedious, I must trouble you with it, because it gives to this part of the indictment an answer as complete as I shall by-and-by give to the others:
"Those whose dreams are disturbed by what they are pleased to call disaffected and republican tendencies, who affect to fear that this colony will, at no distant day, throw itself into the circle of the American Union, may gather from these facts and many others, ample sources of consolation. What is there in our circumstances or our feelings to justify such a slander? What is there so advantageous or so fascinating in such a connection, as to induce a violation of the strongest and most honourable sympathies that distinguish our population-which have grown with our growth, and are strengthened with our strength? If there were such advantages,-which we do not by any means admit,-our very pride would forbid us meanly to seek a participation, when we had borne no part in the heat and burthen of those days of trial by which they were obtained. Could we join in the celebration of American festivals, every one of which was a disgrace to the arms that have protected and not oppressed us, ever since we had a hut or a foot of land to defend? Could we throw up our caps on the 4th of July, and hail with triumph a day that made our fathers outcasts and wanderers on the earth? Could we join heart and hand with a republic which fell upon the rear of Britain, when her front was presented to hostile Europe, in a struggle for the liberties of the world? Were we to permit the American banner to float upon our soil-if the bodies of our fathers did not leap from their honoured graves, their spirits would walk abroad over the land, and blast us for such an unnatural violation.
"Yet it may be said, that we have nothing to set against these national gratulations and glorifyings; and that it is natural for us to sigh for Washingtons and Franklins of our own and for endless anniversaries, to remind us of the deeds and the glories of our ancestors. We do not wish to disparage the names to which Republican America accords a high standing in her annals, nor to speak lightly of the services great men have rendered to their country; but is it possible that any subject of the British Empire-that any member of that mighty whole, can be at a loss for matter of gratification and of pride? Can he sigh for days to remind him of past glory, or names to make the blood stir about his heart? Every page of our history is redolent of fame; and there is not a second of the year unhallowed by some glorious reminiscence. The nation of which we make a part, and of which we are neither serfs nor bondmen, but free, equal and unfettered members, has no parallel either in ancient or modern times. It extends to every quarter of the globe; the sun never sets upon its surface; and by whom shall its boundaries be defined? The seas are but highroads for its commerce; the winds but the heralds of its greatness and its glory ! Nor are its mighty energies wielded to oppress or destroy-but to protect, to enlighten and benefit mankind. While Russia sends forth her armies to seize some tract of territory and to transfer millions of slaves from one species of bondage to another; the children of Britain go forth to distant regions, obtain a triumph over uncultivated nature, carry with them their language and institutions and lay the foundations of an empire. While the rulers of Austria, Portugal, and Spain are employed in forging new fetters for the mind-in retarding the progress of knowledge and improvement, the statesmen of Britain are engaged in working out those reformations which the active intelligence of a free people is continually suggesting. For ages has she stood like a beacon light upon the borders of the old world, luring the nations to wealth, intelligence and freedom. From countries the most despotic and debased, the eyes of the slave have wandered towards the unquenched and unquenchable fire of British liberty, and his spirit has rejoiced in the assurance, that sooner or later some spark would fall upon the smothered energies of his land. Advancing onwards by the guidance of her example, one after another the nations are breaking their yokes upon the heads of their task-masters, and asserting those rights, the knowledge and advantages of which have been taught them by the example of England. Then is it from the fellowship of such a nation as this that we are to go in search of a more honourable union? Are we to fly to the United States for food for our pride, or for objects and associations around which our feelings and sympathies can cling? Must we needs turn republicans, because our forefathers have left us no valuable inheritance-no imperishable monuments of glory?"
And it concludes with the following sentence:
"Here are the true grounds of colonial fealty to England; here are the real foundations of loyalty in Nova Scotia. Here are the securities for the present; here are the assurances of the future. And let those who now imagine that their characters and their influence are the only connecting links which bind this country to its `father land,’ be assured, that long after they have gone to their accounts, and faded from this transitory scene,-nay, after hundreds of similar sages have disturbed its counsels, and stood in the way of its advancement,-Nova Scotia will be still holding on her course, by the side of her illustrious parent, with a purer spirit of loyalty animating the hearts of her population, than is now ’ dreamt of in the philosophy’ of the men by whom her (I might almost have said my) character is slandered."
By a fiction of law, we are bound to believe that His Majesty is present in all his courts. I wish to Heaven that in this case that were no fiction. I wish that His Majesty really sat beside their Lordships, and could hear those sentiments contrasted with the language of that indictment; I doubt not he would do me the justice to wish that he had many more such preachers of sedition in his dominions. While I sat in my office penning these passages, which were to excite disaffection and rebellion, some of their worships were plundering the poor; and others, by their neglect, were tacitly sanctioning petty frauds and grinding exactions; and if His Majesty sat upon that bench, while I could appear before him with my files, and show him that I never published a sentiment that might not have been written within his palace walls and defended in any court in his realm, these prosecutors would shrink before the indignant glance of the Sovereign, whose trust they had abused. His Majesty would tell them that he who robs the subject makes war upon the King; that he who delays or withholds justice excites discontent and sedition; and although they might put on as bold a front as they assumed last Tuesday, he would drive them from his presence; he would tell them that they were the rebels, and that against them and not against me, this bill of indictment should have been filed.
I regret, gentlemen, that from the nature of my defence it will take up much time; the labours of the day will be exhausting to us all, but I feel the responsibility that rests upon me. I anticipate the effects of your decision both on the press and on the community, and must solicit a patient hearing. It may be recollected that the publication under review was preceded by another, written by the same person and inserted in The Nova Scotian a few weeks before. In the first, popular complaints were alluded to, neglect was charged, and some hints of corruption were given. The wish evidently was to arouse the body of magistrates to a state of self defence-to cause an alteration in the system pursued or to elicit some proof that the charges made by numerous writers and by grand jurors were without foundation. By reference to that letter we shall see the impression which was on the writer’s mind-the object he had in view-and it will be also seen that a part of the £1000 a year, which he says was "taken out of the pockets of those who ought never to have paid it," was charged against the unequal system of assessment, which it was partly his wish to expose.
My own experience as a grand juror had fully satisfied me that the general views of this writer were correct; that these inequalities and abuses did exist, and were mainly attributable to the sessions. I may be accused of seeking to overturn the Government, but at all events I am no friend to annual parliaments, and for this sufficient reason. The grand jury on which I served, like all others, existed for a year. It took us nine months to find out that wretched abuses existed, and after we had quarrelled for three with their worships, who are a permanent and despotic body, and have hitherto set their faces steadily against improvement, we went out of office. Others came in, who doubtless spent their nine months of preliminary preparation for fruitless contests, and thus matters have proceeded in a circle for many years.
Let me now turn your attention for a moment to the mode in which the poor and county rates have been levied in this district for many years. A few plain facts will be sufficient to convince you that by the inequalities and injustice of this system alone, to say nothing at all of expenditures, a very large portion of this £1000 a year was "taken from the pockets of those who ought never to have paid it." In 1828, when the last census was taken, the population of the Peninsula of Halifax was 14,439 souls; while in the other settlements within the district over which poor and county rates should be levied, there were 10,437. There were in Halifax at that time 1600 houses and, dividing the population outside the Peninsula by 7, there were probably 1400 or 1500 in the rest of the district. Now it appears that instead of the rates being laid as they are in all the other counties, fairly over the whole, they have in fact been almost exclusively paid by the inhabitants of the Peninsula and those living on the main road, this side of Sackville Bridge. Or if they have been paid by the out settlements what has become of the money? The only sums which appear on the County Treasurer’s book to the credit of the out settlements, between 1820 and 1825, is £136, 12s. 10d., while since that period nothing appears to have been paid. In 1820, Preston paid £9, Os. 6d.; since then we find no trace of Preston. If this township ought by law to pay nothing, why was this £9 taken? If it should pay annually, why has it not? Or if it has, what has become of the money? In 1821, Chizetcook paid £3, 12s. 8d., and since then we find no trace of Chizetcook. Margaret’s Bay, which is a populous and thriving settlement, with a population of 783 in 1828, owning 600 head of horned cattle, appears to have made two payments only, £13 in 1821 and £7, Os. 10d. in 1824. It may be said that the difficulty of collecting taxes from these remote places is so great that it is best to let them escape. But are the difficulties greater than in Antigonish, St. Mary’s, or any other country district where they are promptly paid? If the general impression is that Halifax, being so rich and populous, ought to bear all the taxes and the sessions have acted on that principle, why then we must only conclude that those who hold a contrary opinion, are under a mistake; they must then show us why they took the sums I have named, and if they took any more why they were not paid to the County Treasurer. It is barely possible that all the taxes have been regularly raised and credited, but if we make mistakes, the justices have themselves to blame. They keep their accounts in such a manner that no human being can unravel them. The grand jury of this year found it impossible; that on which I served spent three weeks in a vain attempt, although we had the assistance of some of the magistrates, who could not explain their own accounts. And although in the neighbouring provinces regular exhibitions of receipts and expenditures are prepared and published at stated periods, the municipal accounts of Halifax are involved in mystery and are thrust as little as possible before the public eye.
The township of Musquodoboit contained in 1828 a population of 1312, owning 3900 acres of cleared land, rich in cattle and produce and having, I believe, but a single pauper from one end of it to the other, and yet Musquodoboit never paid one sixpence of the county rate; while Stewiacke, which it adjoins, and which resembles it in every respect, has I doubt not paid every year its proportion to the sessions of Colchester. Perhaps sums may have been paid, besides those I have named-they may have gone into the hands of those to whom the county was indebted, who gave credit accordingly, but no traces of such transactions appear. And let it not be said that the magistrates are not to blame in these matters; was it not their duty to have enforced a system of regularity, simplicity and fairness, throughout the district-and have they done it? I believe about four years ago, when the grand jury refused to assess any more and when they were goaded in the newspapers, they did ask the Assembly for a new assessment Act, but they always had law enough if they had chosen to do their duty. Had they evinced the same ardent zeal for removing abuses that they have shown for criminal prosecutions, there would have been no ground of complaint. Grand jury after grand jury complained of these matters in vain, except to disturb the serenity of their worships; but the moment they found a letter that might be construed into a libel, then they said : Now we will attack the printer of The Nova Scotian; we will bring the action by indictment; he cannot call a witness; the law will find him guilty; grand juries will thus be answered, and the community will say that we are immaculate, and that there is nothing wrong. But they will take another view of the matter by-and-by, when we’ get into the core of it.
Besides those I have mentioned, there are thirty or forty other settlements that ought to have paid-or if they have, ought to have got credit; but since 1825, none is given on the books of the County Treasurer. Now you will perceive that even supposing that upon the Peninsula the rates were fairly laid, promptly collected, and equitably disposed of, inasmuch as all the rest of the district has been allowed to escape or to pay small sums within a long series of years, an immense amount must, as this writer declares, have been "taken from the pockets of those who ought never to have paid it"; and that against the neglect and imbecility of the magistracy this sum must be charged by the people of Halifax, whose taxes have been increased to make up the deficiency. The last grand jury took up this view of it, where they say "that they must bring before the notice of the worshipful court, that the present mode of collecting taxes is partial and unjust, the whole burthen of the municipal expenses having to be borne by a part of the community, instead of being equally divided amongst the whole, and that this evil is entirely caused either by the inefficiency or neglect of the authority into whose hands the power of collection has been vested." You will bear in mind, that I have had to prepare this defence from such information as was public and notorious : I could not of course apply to their worships for any, as punishment not truth appeared to be their object,-but if my own experience does not deceive me free access to their books and accounts would not have helped me much, for the grand jury in deploring the utter impossibility of coming at facts declares "that the treasurer will refer to the collector, the collector to the magistrate, the magistrate to the clerk, and the clerk back again to the treasurer and so on in a circle without end." I must not say that one part of the charge is now proved, but I may say that these impressions were on my mind when I published the alleged libel. And how could I have refused its publication, having these impressions? The writer of the letter never dreamt of prosecution following it; it is evident from both his letters that he only desired inquiry and reformation; for he challenges any of the magistrates to come forward and explain these matters, which were, in his view, operating unjustly and exciting discontent in the community over which they were placed.
But allowing that the assessments ought to have been laid on the Peninsula alone without any reference to the out settlements at all, it was and is evident to me, that corruption, mismanagement and gross injustice existed to a considerable degree, even within this limited extent. For very many years there were in the town of Halifax two classes who were called upon for assessments; one which regularly paid, the other far wiser, who never paid at all if they could possibly help it. Let us suppose, gentlemen, that six of you were of the former class and thought when a rate was laid it was as well to pay and have done with it; that the other six thought it would be as well not to pay until they were forced; that some of these were magistrates and their functionaries, or the friends or creditors of the official folks about the brick building (who were always in debt) and who could not or would not be pressed until it was impossible to avoid it. Let us suppose that a rate was laid in 1820 and that within that year the first six paid and the second did not; of course there was a deficiency and the prompt payers had an additional sum laid on their shoulders the next year to make it up. So it went on year after year. Those who did not pay, like shrewd calculators knew that at all hazards they would save the interest, even if they were ultimately compelled to pay principal-while their neighbours in the meantime were compelled to pay principal and interest.
Without the books before me and reference to figures, it would be impossible to say what sums have been thus by this system "taken from the pockets of those who ought never to have paid them," but I challenge my prosecutors to come forward with their books and accounts for the period mentioned in the letter, and if they do I pledge myself to show them without reference to expenditures at all, that in raising the taxes for the district gross injustice has been done to the full amount of £1000 a year. This system was continued by the sessions until the grand jury made a stand-refused to assess-and insisted on the arrears being collected. But no attempt at reformation was made by the sessions; none would have been made but for this resistance. I do not blame the corruption of this system upon all the magistrates, but they left it in the hands of those who made it suit their own ends, and therefore the losses of the community are fairly chargeable on their neglect. A member of Council, when asked why his taxes were not paid, explained that the officer in charge owed him interest moneys, and ought to have paid them as he was desired. I know a person who had a demand of £25 or £30 against the same party and who, finding great difficulty in getting it, at last hit on the expedient of drawing orders upon him, for the amount of his taxes. Every year as the collector came round, an order was given and placed to the credit of the officer; but whether the officer ever paid the amount to the county or not, would I believe puzzle us all to discover. Charity would fain induce us to believe that he did; but oh ! how I should like to see the books. My occupation is sedentary; I have not the same opportunities for discovering the delinquencies of these parties that others have; but here is one glaring fact that I give from my own knowledge as an illustration of the system. Many others are said to exist, and if they do, nay, if the state of things has been such as to arouse suspicion, was I wrong in inserting a letter which was intended if not to produce reformation, at all events to elicit the truth?
What gives force to these suspicions, and encourages the belief that favouritism and fraud have been more general than the public can conceive, is the extraordinary story they tell of some of the assessment books having been stolen. What would be thought of a merchant who should tell such a tale to his creditors? But it may stand them in stead in more ways than one, because they may now say, we are prevented from answering these charges by the loss of our books. Is it likely that any thief would be such a fool as to run off with these old volumes? They were indeed curious documents, but I doubt if any man but an antiquary would steal them. Though within two or three years the system has been somewhat improved and many of the old arrears collected, a remnant of favouritism and corruption still clings around it; and a poor man informed me but a few days ago, that when he went before the Committee of Magistrates to appeal from his assessment of 1834 there was one of their worships appealing for 1833. Surely these things are not fair, and if they are not, ought their worships, until they could show that nothing was wrong, have come into the court to punish a man for merely doing his duty?
In his first letter, the writer of this supposed libel shows that it has been ascertained by an actual and very low valuation of the property on the Peninsula alone, that it is worth £1,200,590, and that at the rate of 70s. per £1000, which was the rule in 1834, this would yield £4500. And yet with all this property, even within the narrow limits to which the sessions appear to have confined their assessments, how does it happen that when only £700 or £800 has been required, individuals have been called on for sums so large? My own rate last year was about £4, and I know one individual who paid the twenty-fifth part of the whole assessment. Indeed so unequal, arbitrary and oppressive have these taxes been, that there is scarcely a man in the town who has not at some time or other had to appeal against them, and the time lost to the community by these appeals would defy all calculation. Only observe what is said of the system by one of the justices, in a communication made by him in answer to a circular issued by a committee of His Majesty’s Council. After laying the blame on the grand juries for naming improper persons as assessors, he says : "From thence come assessments of all things the most erroneous. One set of assessors will tax the owners of the whole property, another will put a part upon the tenants; one will value an estate at £3000, another at £500. One man one year will be taxed £3, and the next perhaps £30; from whence come endless and everlasting appeals."
If this be true, it is in vain to charge it upon grand juries who are an annual body, whose complaints are laughed at and to whom the information necessary to guide them was continually denied. And even allowing that no corruption existed, what a load of iniquities their neglect attaches to the men who tolerated and upheld such a system. Instead of going to the Governor to insure my prosecution, they ought to have gone to him ten years ago and besieged his gate with clamour and remonstrance, until he lent his influence to the introduction and passage of laws for the reformation of these abuses, or until he strengthened their hands to enforce, the law they had. But they suffered the poor to be ground and the rich to be robbed by those exactions, and considered it as nothing; they never impanelled a jury to try if injustice had been done; they never even came forward to tell the community that a better system must be devised. In these charges of neglect I include all the magistrates. The law makes a looker-on at a felony a participator in the crime. These men looked on for years; they did not advise the people or the Government, or take any step to produce a reform till driven to it by the refusal of grand juries any longer to assess.
Last year I received a summons calling on me to pay my poor and county rates, amounting to about £4. I attended accordingly, where I saw a magistrate, the clerk and the collector, surrounded by several poor wretches who had been brought there on the same errand, and was accosted with, "Oh ! we suppose you have a check on the county and that is the reason you have not paid." I answered, "No, thank heaven, I have no check on the county, but when on the grand jury I observed that there were two classes, one who did and one who did not pay, and having been for six years among the former, I wanted if possible to get a berth among the latter."
We may smile at these matters, but they are melancholy illustrations. Poor wretches are dragged down to their worships for non-payment, while they see their rich neighbours not paying at all, or not paying a fair proportion. If these men had done their duty things would not be in the state in which they are; the community would not be thus excited; time would not be wasted with "endless appeals "; the poor would not be taxed with summonses and suits, the Legislature would not have been tormented with investigations, or His Majesty’s Council vainly employed in unravelling the maze; nor would the Governor, the moment he touched our shore, have been called to examine a system that might take its place in the black book among the "robberies of charitable foundations," and informed that an Augean Stable here awaited his purifying exertions.
The same system of inequality and injustice, you will perceive, pervades all the taxes. If a new building is to be raised or if repairs are necessary and more taxes are required, the more money wanted, the more grievous and oppressive it becomes. The fire taxes are raised after a similar fashion but what becomes of them? Hitherto, you will bear in mind, that I have not said one word about expenditures, all the evils I have depicted attend the collection of the taxes. And in coming to the expenditures, I only regret that I am not permitted to put a single witness in the box, as I am satisfied that that one, were she to tell you how this system has ground into her soul, would be sufficient to secure me your verdict. Fire taxes, for the remuneration of parties whose property is pulled down to stop a conflagration, are laid as you are aware, on real estate, which cannot escape. The owner may run away, but there the house stands all-sufficient for the amount; yet in numerous instances, after a rate has been laid on, and money awarded, years have elapsed before the sufferers received it, and there are a dozen persons having claims unsatisfied that have been standing from five to fifteen years. A house belonging to Miss Hogg was pulled down at the fire which occurred about four years ago. She was awarded £200. At the end of twelve months she received about £20; she subsequently got three other payments, the whole amounting to £103, a year has elapsed since she received a sixpence; and in the meantime, the town owing her £97, which she could not get, she was sued for £1, 16s., her poor and county rates, and here is the constable’s receipt for the sum, with seven shillings expenses.
These things exist, and yet a dozen men whose names appear in the almanac as justices of the peace, have come here to prove me a rebel, because I gave utterance to the complaints which such grievances elicit. Would any of you gentlemen so manage your private concerns? Would you, while you owed a woman £97, which you refused to pay, cause her to be arrested for a debt of £2? Other similar cases might be mentioned : Mrs. McDonald, who is known to most of you, has never been paid in full. Miss Graham’s property was pulled down some fifteen years ago, and of the sum awarded her, £50 remains due to this hour. Fortunately for her a respectable mechanic engaged to repair her property for her share of the assessment; he is therefore yet minus the £50; he has dunned their worships and their officers time after time to no purpose, and has repeatedly offered to collect the money himself, but they would not allow him to do even this. It is possible that the tax could not be collected, but it is most extraordinary that it should be so, when laid on real estate. Why not allow the man to collect his own money? Did they dislike that he should see the list of defaulters, or has the money been collected and not paid? Does the balance form an item in these inexplicable accounts? These questions are daily asked by the sufferers and reiterated by the community, and the facts out of which they arise justify the suspicion that there is "something rotten in the state of Denmark." Their worships blame the press for publishing strictures on their conduct, but as an excuse for it I may mention, that almost the only person I know who has got paid in full, was Mr. George Anderson. Him they kept out of his money for three years and he only got it after he had attacked them in the newspapers; while I mention this instance of the power of the press, I may congratulate him on his experience of its instrumentality.
These charges affect the whole body of my persecutors-they must share the blame among them. But as they are attributable rather to gross neglect and culpable imbecility, than to individual corruption, I utter them with less regret than I shall some others, which must deeply affect the reputation of certain parties. This is to me a painful task, but I shall not shrink from it. I have been dragged from my home and arraigned before you as a criminal, and I must enter into these matters in order to convince you that I am not quite so guilty as some would wish you to believe. So far as we have gone, I think I have shown that the whole municipal system is so bad that it can hardly be worse, and that we need scarcely go further, to satisfy ourselves that the figures this writer has used are innocent enough.
But there is one of the establishments under the control of their worships, which has long been and still is a disgrace to the Province. If you find me guilty to-day send me to jail if you will-put me in the safe keeping of the Sheriff, but do not send me to this establishment; save me, above all things, from Bridewell. During the last year, the grand jury sent a committee to examine it and their report was handed into court in the form of a presentment, and is as follows :
"The committee found the building leaky, and the bedding insufficient. The building usually occupied as a woodhouse, in the yard of Bridewell, is used by Mr. W. H. Roach, the acting commissioner, as a stable for his horse and the wood piled out in the yard. The matron of the establishment, Mrs. O’Brien, and the keeper, Mr. O’Brien, stated to the committee, that barrels of flour marked superfine, sent for the use of the Bridewell, were in many cases composed of flour of different grades, sometimes mixed up with corn meal. In the only case in which a barrel of flour was weighed, it was found sixteen pounds short. That a man by the name of P. Walsh, employed as an under-keeper, pays no respect to the keeper, and goes and comes when he pleases. Was absent on Wednesday nearly the whole day, and when he returned in the evening, informed the keeper that he had inspected one hundred and ninety-six barrels of flour on Black’s wharf. That John Cain, a prisoner, was often employed by Mr. Roach. That John Gilmore, a shoemaker, was frequently employed by Mr. Roach, in making boots and shoes for his family and in one case, for Captain Coffin, out of Mr. Roach’s leather. That D. Heffernan was frequently employed exclusively by Mr. Roach, and that out of four wine pipes, which were charged in Mr. Roach’s account, a bathing machine and buckets were made for Mr. Roach’s family."
It may appear strange to you, gentlemen, that when I found that five magistrates had been drawn upon the panel, I did not strike them off; but I recollected that some of these men had formed a committee of inquiry to investigate these charges against Mr. Roach, and as they had acquitted him upon the evidence which I shall presently place before you, I naturally concluded that if they were so easily satisfied and so ready to acquit persons charged, that even if I made, like the commissioner, no defence at all, I should be certain of their verdict. I trust, however, that I shall be able to make out a stronger case than Mr. Roach. The committee of magistrates appointed to try him, had, as I am informed, the keeper of Bridewell and his mother for some hours in the brick building, undergoing a long examination, which did not seem directed so much to elicit the truth, as to whitewash Mr. Roach. Among the other affidavits taken, was that of Mr. Roach himself, who swears "that he did use the woodhouse temporarily for his horse; that the coal was kept in the woodhouse, and that there was also room for the wood, without interfering with the horse in the woodhouse." Although the keeper, on his oath, declares, "that the woodhouse would not hold the coal, wood, and horse." Mr. Roach kindly informs us "that he found the provender at his own expense "! Generous man ! so he did, but it is a pity he had not found a place to put it in, for I understand that the watchhouse was so crammed with hay and straw that the poor watchman had scarcely room to move.
The keeper admits that he did not see any mixed flour, but his mother positively swears, that "her attention was called to a barrel of flour which had Indian meal in it. The baker and she weighed one barrel, which was sixteen pounds short and was composed of different kinds of flour. The two barrels now on hand are sour." I have been assured by gentlemen present, that the charges of the committee were not founded on statements volunteered by these people, but wrung out in answer to questions put to them by members of the grand jury; and here the woman has proved the truth of every word she told them, by her affidavit made before their worships. There is a curious admission, however, which, in answer to some leading question, ingeniously worded, Mrs. O’Brien is got to make-that the "flour and meal might have got mixed, because they stood in the same room; "and she is also made to say that she "had seen mixed flour" before she went into Bridewell. But in the face of this woman’s affidavit, see what Mr. Roach himself swears to. In the teeth of this testimony he positively denies that any of the flour furnished was "mixed," or "short of weight," although the woman who used it, and who weighed it, declares that it was. How could he know anything about it unless he packed it himself? This may be a matter of little consequence, but it shows that an oath was lightly regarded. Mr. Roach admits that "he did employ Cain, but he was fed at his house. He did employ Gilmore to make some boots and shoes for himself and family, and also a pair of boots for his friend Captain Coffin; and for the time he was so occupied, it was his intention to have compensated the county on his retiring from the charge of Bridewell." He acknowledges also, that Heffernan made a small oval tub, and some bird cages for his family, but then "he found the materials."
Mr. David Roach, the deputy inspector of flour, deposes that "he recollects Mr. Roach supplying Bridewell with superfine and rye flour; that witness delivered all the flour; that it was always good and of full weight; that it was unmixed, and inspected and weighed by deponent." Now, which do you believe, this deputy, or Mrs. O’Brien who tells us that it was mixed; that it had meal in it; that the baker and she found the only barrel they weighed sixteen pounds short; and that "the two barrels now on hand are sour "? Then follows a little piece of apparently superfluous information, as no charge on that head had been made, "that it was flour purchased and kept for sale; that the flour Mr. Roach got by his inspection was never repacked and sent to Bridewell, but was used in the family." Now I could put a witness in the box who would tell you that in one forenoon that he attended Mr. Roach, he drew out two kegs full of flour from the barrels which he was inspecting, which the man carried home, so that if the family ate it all, as the deputy swears, why then-they must have very good appetites. In reference to the charge of employing Walsh, the deputy further swears, that on the 16th, being in search of a person to help him weigh, &c., he "met Walsh by accident," and got him to go with him to Black’s wharf, where he was only two hours; that he "never inspected any," and "never was employed at any other time." I can easily understand why he did not wish it to go abroad that this man, who acquired his taste for flour in the Bridewell, where it was all sour, and his knowledge of weighing where the barrels were sixteen pounds short, was ever employed to inspect and weigh for the merchants. But passing this by, you will perceive that the worthy commissioner of Bridewell has shaken himself clear of no material charge made in that presentment; the most of them are admitted, the others only denied on the oaths of himself and deputy under circumstances that render it impossible that they should be believed.