The Indictment for Libel
and Howe’s Defense
The Indictment: (March 2, 1835)
JAMES F. GRAY, Esq.,
My Lords, and Gentlemen of the Jury,
It becomes my duty, as one of the retained counsel in this case, under the direction of the Attorney-General, to open the charge and explain the principal circumstances connected with it. Although this charge is not one of common occurrence here, it is well known to the law and is provided for by fixed legal principles. The indictment in this case, after setting forth the usual inducements, states the particulars on which the charge is founded. As it is not usual for the officer to read the indictment in libel cases, the opening counsel may feel it his duty to explain its particulars, so as to enable the jury to understand the nature of the charge.
The indictment states, that on the first of January, a certain libel was published in The Nova Scotian newspaper, with a view to injure and degrade and bring into disgrace, the magistrates of the town of Halifax. The libel, which is described as false, infamous, defamatory, and malicious, was signed " The People," and contained charges on which these counts were laid. [Here Mr. Gray read, and made brief remarks on, the letter as contained in the indictment.] To this indictment Mr. Howe pleaded, and declared himself not guilty. On this the usual steps occurred ; and now, gentlemen of the jury you are impanelled to investigate the circumstances of the charge ; to try whether the defendant has published the letter charged, and whether it comes under the denomination of what is called in law, a libel. The letter was contained in a newspaper of which Mr. Howe is the acknowledged editor and proprietor. When the publication was made, the magistrates applied to the Governor, praying that such a course should be adopted as would bring the matter before a court of justice. His Excellency transmitted the application to the Attorney-General, and placed the affair in his hands. The law officer, in virtue of his office, has more power than any other advocate, and of two courses he might make choice of either. He could have filed an ex-officio information, on behalf of the Crown, which, without any preliminary inquiry, would place the defendant upon his trial. That course he did not adopt. I am glad that he did not, although the practice has been frequently resorted to in England. He adopted a course more consonant to the principles of public liberty ; he laid the charge before the Grand Inquest of the county, a bill was found by them, and now Mr. Howe takes his trial as he would for any other criminal offence. He is put upon his trial as the publisher of a letter which is designated a libel. It may be said by some, why prosecute the publisher? Why endeavour to punish him, instead of the author of the alleged libel? The answer to this may be given by saying, that it is the publication which constitutes the offence.
In this case it will be shown that the letter was published, and that Mr. Howe was the instrument of publication. The proprietor of a newspaper is liable for all which appears in that paper. Even if he were ignorant of a matter until it came before the public, still is he held responsible ; when he undertakes to manage a paper, he is answerable for all that appears in its columns, and he should be so answerable. If in all cases the author should be resorted to, how is the author to be found? Or, if an author were given, might it not be in the following manner : not intimating, however, that Mr. Howe would act in the supposed manner ; from what I believe to be his spirit, I would conclude that, in any case, he would rather appear himself than give up an author,-but suppose that it was obligatory to proceed against an author rather than a printer, might not the publisher give the name of some person without property, from whom a fine could not be exacted, and to whom confinement in a prison would be provision of food and lodging ? The publisher is the person guilty of the offence ; between him and the public the question rests. He should be guarded as to what he publishes, and so guarded in doubtful cases as to be able to make amends for any difficulties which may ensue.
A libel in law is defined to be a malicious defamation, either by writing or pictures, tending to blacken the character of the dead, and thus to excite the living; or reflecting on the living so as to injure reputation, and to endanger the peace of society. As regards public persons, official characters, magistrates and other functionaries, the law considers a libel a higher offence than when committed against private individuals. When committed against persons in authority, the crime is looked upon as an attack on the Government; not only as a breach of the peace, but as a scandal against all authority. You, gentlemen, are to say whether this publication comes under this description ; whether it is directed against a body of magistrates, and is calculated to bring such a body into contempt, disrepute, and disgrace.
We will have to prove, not only the publication of this letter, but that Mr. Howe published it, and that its intention and design is as laid in the indictment, to injure and degrade the magistrates. Having done this, as the law formerly was, we might stop ; you would have to pronounce on the fact of publication and the intent; and if enough on these points were shown to you, our case would have been complete. But in consequence of great exertions of English lawyers, an alteration in these matters has been made ; cases of libel are now placed on the same footing as all other criminal cases ; the jury are made judges, taking the law for their guidance from the court. This enables a jury to take a view of all the circumstances of a case; formerly the court had the sole consideration of the question of libel, now it is for you to say whether or not the matter charged is of a libellous nature, as well as to say who is the publisher, and what his intent. One ingredient in a libel is malice. Before the passing of the statute alluded to, the question of malice was virtually referred to the court ; and if malice was to be inferred, the legal inference was that malice was contained. Now it is for the jury to decide on this, as on the other features of the case. Malice has not the same meaning in legal as in common language. By legal malice is meant, that the party charged did an injurious act which he was not justified in doing. If a libel be published calculated to do evil, to bring persons into contempt and disrepute, such a publication must be supposed malicious until the contrary be shown. But the contrary cannot be shown, except by proving the publication accidental, or accounting for it in some way which is impossible in this case, for the proprietor of a paper is responsible for all that appears in its columns. If so, then the present defendant is guilty of publishing a malicious libel: he has published that which has a tendency to produce disgrace and contempt towards certain persons ; and the law infers that he did it maliciously.
As regards the mode of prosecution,-this libel is not aimed at any one individual ; no one is selected as a particular mark ; if a particular person or persons had been selected, you would not have found the indictment laid by the whole body. This difference exists between a proceeding by indictment, and one by civil action. Under an indictment, the proof of truth or false-hood cannot be allowed ; the question is concerning the committal of an injurious act. I am instructed to say, that nothing would be more desirable to the magistrates than that such proof could be allowed ; but it cannot. In indictments, the King becomes a party in behalf of the public against a person who is charged with some act injurious to good government. If an individual had proceeded by indictment, you might say - although I do not intimate that - you ought to say so, for true or false, a matter of injurious tendency should not be published - but you might say, the person who comes forward in this sheltered manner does not deserve such a shelter. No such objection can be made in the present case ; the magistrates have no right to hold a civil action ; as a public body they cannot seek redress by private action. They had no remedy left except to proceed in the present mode ; and, in this mode, the prosecution has been conducted in the most liberal manner. The grand jury have passed their opinion on the case, it appears in this court, and here you are made the judges of it. But suppose justification could be given in any such case, is this such an one? Is a particular person injured here or a particular number of persons? No, but a whole body. Is the present time only alluded to? No, but the long period of thirty years. This body, during that period, is charged with having dishonestly pocketed public money. Is such a charge capable of justification? How many of them have handled public money? Several of the body charged, now alive, and some now no more, have performed public duties, without any benefit to themselves ; they have acted as guardians of public order without ever having been receivers of public money. Yet this charge affects all. I wish that justification could be allowed, for it would fall short ; it would be in vain for the defendant to prove against one, two, or three ; he should show that the whole body was guilty, or justification could not be sustained. Under this libel, which of the body charged can say that they are innocent? It allows that all are not guilty, but who can say, I am one of the innocent men alluded to? If no notice were taken of this matter, it might be said, such and such charges were made against the whole body and no steps were taken to rebut them. This consideration induced the prosecution, but many of the magistrates regretted that it could not be brought in another shape. It, is impossible for the jury to say there is not sufficient defamatory, malicious matter in this letter to constitute a libel. The defendant stands charged with every passage taken together, and with each taken separately ; one part does not alter the effect of another ; the persons excepted are not designated ; all are charged in general terms. Caution at least would have been expected from the defendant. It may be said, who does not know the persons more particularly alluded to? Who is there that cannot select those charged in the publication? But I ask, is this confined to the town of Halifax? Is it confined to the Province of Nova Scotia? The ability of the publisher of this generally well-managed paper, has extended its circulation over the neighbouring Provinces and States, and this libel is disseminated wherever the paper goes. If in a foreign land, one of those charged were, very naturally, to take some credit for having served in an honourable office, it might be said, for that very reason you are subject to disgrace ; the body to which you belonged was publicly charged with wrong-doing, and you stand as one of the implicated. None of the magistrates, none of their connections, but might meet with such insults, and all owing to the publication of this libel. The talent and industry of the editor, which occasioned the wide circulation of his paper, instead of giving a license, ought to furnish additional reasons for caution and prudence. The liberty of the press is a theme with many : but if the liberty of the press is to justify every publication, then, no matter what was said, who was injured, none could get redress. The liberty of the press has been defined to be a liberty to publish thoughts, subject to legal consequences. Is this such a candid discussion of public measures or men, as could be tolerated? Far from it. If a belief were entertained that certain of the magistrates were guilty, the supposed guilty persons should have been named in the charge; those acknowledged to be innocent would not then be implicated, although the letter would still contain a libel, because there were other modes of correcting the evils complained of. The courts of justice were open, in which complaints might be made, and would be attended to ; by a petition to the Governor, the dismissal of a guilty party might be procured ; so that if grievances existed, and the truth only were published, it would not be justifiable, for no necessity could exist for the publication. Discussion respecting public men should be confined to public measures, and to the manner in which public duties were performed ; but this sweeping crimination could not be at all justified; if it were, worse effects would follow than would result from any restriction of the press.
There is no doubt that the counsel for the prosecution are contending against the popular side of the question ; but juries in Halifax have always done justice between parties, uninfluenced by such considerations. I am sure, gentlemen, that you will freely and properly decide as to the merits of the case ; you will say whether the charges in this letter are such as should have been made and whether their nature or their consequences call for consideration. Whatever your verdict may be I shall be satisfied, and will now leave the question in the hands of those, who, I am confident, will act justly in the matter.
At this point in the proceedings, the Prothonotory read the letter to the editor as published in the January 1, 1835 edition of the Nova Scotian. Mr. Howe also acknowledged at this time that he was the proprietor of the Nova Scotian.