Acte d’accusation pour diffamation
et défense de M. Howe
Défense de M. Howe : (2 mars 1835)
But there was another charge against this man of so serious a nature, that if I had been a member of the Magisterial Committee, I would have sat in sessions till I died, unless he fully cleared up the point, or was driven from the Commission. In the account sent in to the grand jury $9 per barrel was charged for flour furnished to the Bridewell; as this was a higher price than would probably be paid by his lordship for the best he could set on his table, the grand jury thought it was rather too expensive for the house of correction and made some inquiries of the keeper, in whose name the whole account of £53, 19s. was made out. He said he knew nothing about the prices, that he had only supplied £3 or £4 of the whole amount, but that Mr. Roach had supplied the rest, and handed him an account to copy and render in his own name. The grand jury therefore returned the account into court and insisted on its being rendered in the name of the party who furnished the supplies. It was accordingly recopied and returned by Mr. Roach; but fearing that he had charged the flour too high, and thinking the alteration would not be discovered, he struck off 2s. 6d. a barrel, retaining O’Brien’s account. The jury detected the trick, and inquired for the copy made by O’Brien—it was nowhere to be found. Mr. Stewart Clarke, who hears me, handed it to Mr. Roach, but he denied any knowledge of it, and it was not forthcoming. Fortunately, however, the jury had retained the original account handed to O’Brien to copy and in that the flour was charged at nine dollars, although in the one he returned he had reduced it to eight and a half. Thus did they trap the worthy commissioner. Will I be told that the trifling nature of the amount makes any difference in the transaction? If any one of the body who laid the indictment were guilty of such acts, how could they come into court to prosecute me? I make no attempt to deceive you, gentlemen; I would rather lie in jail for years by your verdict, than forfeit your good opinion. I state nothing to you as a fact which I have not evidence to prove, I draw no inference from facts that does not appear to my own mind rational and fair. This story of the accounts may not be true, but I can bring three members of the last grand jury, as respectable men as any in the town, who will swear to every word.
I dare say you will now wish to hear nothing more about the Bridewell; but only group the evidence which the affidavits furnish. There was Commissioner Roach’s horse stabled in the woodhouse, and the wood piled out in the yard; the provender which he so kindly furnished at his own expense, was crammed into the watchhouse; one of the prisoners was employed making boots and shoes for the magistrate and his friends; another manufacturing tubs and buckets; the under-keeper inspected his flour; and the vagrant, who had no particular trade, did his errands. I might entertain you for hours with instances of such petty peculation. This great man had his vegetables in one of the cells; another held his celery packed in earth. If his house was to be banked, a gang was sent from Bridewell; and of course the prisoners fed and watered his horse. He was in truth like the ruler in Scripture, who said to one “go, and he goeth; and to another do this, and he doeth it.” It is a curious fact that since this inspector of flour became commissioner for Bridewell, the prisoners have been supplied with no potatoes; they have been fed entirely on bread. I am at a loss to discover any reason for this, except by supposing that there may be some unfortunate Irishman in the place, and that it was intended as a part of the punishment of poor Pat, to give him no potatoes. This is the only reason I can give, but some of the jury may imagine others for this exclusive consumption of flour.
When this man and his family walked abroad, their feet were protected by the county; when they gave an entertainment, Cain was despatched from Bridewell with the celery; when they were disposed to enjoy the luxury of the bath, the county furnished the tubs; and even the melody of Miss Roach’s canaries was breathed through cages manufactured at the public expense. They had, some time ago, a poet in Bridewell; and I am inclined to believe, although without access to the document I would not state it as a fact, that he was fully employed in writing sonnets for the family album. If you send me there, I shall be compelled to print him a newspaper for nothing and then the list of his luxuries will be pretty complete. I am afraid, however, that he did not anticipate this day. He never imagined that this “Tale of a Tub” would have such a general circulation—he never dreamt, when retiring to the bath, that he was really “getting into hot water.” Before we are done with him, I fear he will be in condition to take, what poor Sardinia used to call “one vapour bath.”
These details may be ludicrous, but mark the moral effect of all this upo n the poor petit larceny wretches confined in Bridewell. They were not sent there for punishment only, but for the purpose of reformation. This is one of the benevolent objects of the law, the main point to be considered in every municipal code. But did not all the prisoners know what was going on around them—and what would be the obvious current of their reflections? Would each or would any, under such circumstances say—I am a guilty wretch, and will pray to heaven for a change of heart that shall restore me to society; or would he reason thus—It is true, I have been very unfortunate in getting here, but I was on the right road; if I had only had good luck as well as good intentions, I might have been filling situations of honour and emolument; that might have been my horse, and these poor devils who surround me would have been my servants and my slaves. This is the moral effect of having such commissioners.
I was amused at seeing Mr. Roach’s averment that he found the provender for his horse; he would have added, had he thought of it, that he also found the water for his bath. But while such things are tolerated by members of their own body—while they attempt to slur them over by partial investigations— how can the magistrates of Halifax come here to prosecute me, for aiding inquiry, or even for the publication of attacks, however unmerited and severe? This is a modern picture of the Bridewell; but as the letter refers to a period of thirty years, I may be pardoned for giving a sketch or two of its ancient history. I can recall a period when my father interested himself deeply for the welfare of the poor inmates of that prison. Though a magistrate himself, I mention his name with veneration; and I know that there is not a human being who hears me, that does not participate the feeling. He never carried the municipal bag; he never took a shilling of the fees to which he was entitled; he had nothing to do with their dirty accounts and paltry peculations. If he were to blame, it was because he could not suspect that those to whom these matters were confided would betray their trust; if he had a fault, it was that, being an honest man himself, he could not believe that there was a scoundrel on the face of the earth. Some years ago it was his practice to take his Bible under his arm every Sunday afternoon, and assembling around him in the large room all the prisoners in Bridewell, to read and explain to them the Word of God—he never filched from their daily bread, but he sought to impart to them the bread of life. Hardened and abandoned as many of them were, they were softened by his advice, and won by his example; and I have known him to have them, when their time had expired, sleeping unsuspected beneath his roof, until they could get employment in the country.
The person at that time in charge of the establishment was such a brute, and reigned over the place with a profligacy so abandoned, and a cruelty so harsh, that having remonstrated with the magistracy in vain, and finding it impossible to effect his removal, my father left the establishment in disgust, and has never been near it since. One day he discovered a poor creature with a spiked dog-collar around his bare neck, placed there for some petty offence; and on another morning he found that a woman had been kept in the stocks all night in the open yard, because she would not submit to the brutal embraces of the keeper. My father protested against these abominations, but could get no redress. He thought it strange that such a fiend should be so patronized; he never suspected peculation; but I have not a doubt, from the new light now breaking upon us, that the keeper of that day was more compliant than Mr. Roderick O’Brien; that he was very useful in the management of supplies. He was finally ousted, when it was found unsafe any longer to retain him. A fellow who was put there for theft, was in a few weeks raised to the rank of under-keeper and used to be let out upon the town every night; until the keeper becoming implicated in some of the roguery of the subaltern, he was shipped off to the Canadas, from which he is not likely ever to return. Now, gentlemen, with this evidence before me; with my own ancient recollections blent with the modern history of this place, could I have dared to refuse publication to that letter?
In turning to another of these establishments, I hope that he who on Tuesday last read that impudent resolution to their Lordships, hears the sound of my voice; and if he does, while he quails under the statements I make, let him remember that he placed me here; that he tied me to the stake; that he and his colleagues filed against me that indictment in which I am charged with sedition and rebellion. Many of these magistrates, as I before stated, are men of integrity and honour, who are guilty only of neglect, but are far above peculation. Some of them have urged on this prosecution, not from unkindness to me, but in order that others, whom they know to be criminal, but whom they had not the manliness to confront, might be exposed. Should they have done this? Ought they not rather to have formed themselves into a court of inquiry, and having all the officials under their control, and books and papers at their disposal, to have gone into a full investigation; to have sifted the popular complaints, and have purged and purified their own body? But they have not done so; they have left it to me, and they have placed me in a position where the performance of a disagreeable duty is essential to my own safety. I feel that it is, and to the public safety also, and shall not shrink from the task.
By the 9th section of 6th Geo. III., which regulated the affairs of the Poor Asylum, it is expressly enacted, “That no commissioner shall have any profit or emolument whatever, by furnishing supplies.” Some members of the sessions have thought, however, that they could alter this law, as they wished to alter the law of libel; for in the face of that section, binding and obligatory as law can be, is it not matter of notoriety that for years the principal part of the supplies for the Poorhouse passed through a certain store; that nearly all the flour and meal passed through a certain mill, leaving, of course, an abundant grist behind? Much improvement has been latterly introduced, but for many years this was the system. What was neither in the store nor in the mill was purchased upon the credit of the commissioner, which was bad; or on the credit of the establishment, which, in his hands, soon became worse. Creditors had to wait years for their money, and to remunerate themselves, when next he came to purchase, put on an additional ten, twenty, or thirty per cent. I could place evidence of undoubted credit before you, who would show that this was the system; and some who will tell you that they would not give credit at all. The effect of this system was ruinous; for although inferior articles were purchased, the highest prices were always paid. I do not say that all the profit was enjoyed by the commissioner; a part might have been pocketed by the merchant for the risk he ran, but in either case it was equally injurious to the paupers and to the public.
If the baker were in that box, and you were to ask him why he did not make better bread, his answer would be, how could I out of such materials? If you asked the miller why he did not make better flour, the reply would be because the materials were bad. What would not a man do, who would thus wring a profit from an establishment dedicated to the comfort of the poor and destitute; who would thus filch from mendicants to put money in his purse? Gentlemen, there is not a man in your box that would not beg from door to door; that would not rather shake from his back the last rag that covered him, than thus prey upon the unfortunate beings whom the storms of life had driven into such a haven.
The best proof of the costliness of the administration of the worshipful commissioner to whom this letter-writer alludes, is to be found in the fact that while the paupers formerly cost the community seven and a half pence a head per diem, they are now maintained, under the improved management, for something over fivepence. Formerly the house was always several hundred pounds in debt; now there is a balance of two hundred pounds in hand. Formerly credit could only be got at these ruinous prices; now persons in business are glad to deal with the asylum, because they are promptly paid. But though the affairs of this establishment are greatly improved, a little of rottenness still remains. Though each commissioner entrusts the clerk to 1835 purchase supplies, and gives him a check for the amount on the production of vouchers at the end of every month; when the party who formerly monopolized the whole assumed the control in December, he reprimanded the clerk for daring to interfere, and purchased the supplies himself. Mr. Gray, in his address to you, said, that there was no other course open to these justices but a bill of indictment, because no one of them was distinctly pointed out; but was not the person to whom I am now referring particularly attacked—was he not charged with deriving a large sum from the supply of the Poorhouse? If a charge is made in a newspaper in such a way that, although the party be not named, it is generally referred to him, he is entitled to his action. Did not every man who read that letter know who was meant? I have not mentioned his name, but is there one of you, gentlemen, who do not know him as well as if I had? Could he not have brought his action? Why did he not? Because he was afraid. But I think, notwithstanding the opinion of the learned counsel, that either of these justices might have brought this action. Fraser’s Magazine, some time ago, published an article reflecting upon the cooks of London. Lord Grey’s cook, feeling himself aggrieved, and determined to vindicate the interest of his order, prosecuted and received damages for the injury done to himself. Why did not some one of these magistrates stand forth and act this manly part? They thought, perhaps, that the more cooks, the less chance of spoiling the broth; but we shall see how far this opinion was correct.
These details are painful for me to utter and for you to hear; but I solemnly declare that I have stated nothing but what I believe—nothing but what I believed in January when I published the letter charged in the indictment. Their Lordships’ classic minds will readily recall the punishment which Dante assigns in his “Inferno” to public peculators. He casts them into a lake of boiling pitch, where, as they wallow and plunge, the fiends rend and tear them with their fangs and delight to increase their agonies. Let the men I have been describing take care that besides the contempt of this world, they do not get a scalding in the next. They cannot be Christians; let them beware how they adopt the creed of the Italian poet. They gloat over the idea of the triumph which they expect to-day—but they have yet to learn that
” Thrice is he arm’d who bath his quarrel just, And he but naked,
though lock’d up in steel, Whose conscience with injustice is polluted. “
They will long remember this day; but let them also remember that they thrust forth their rotten reputations to dare the lightning flash of truth—that the lash from which they suffered, was forced into my hand.
Having shown you how taxes are raised and how some of our establishments have been conducted, I must now introduce you to the brick building below, where the business of the clerk of the peace, the police office, and the commissioners’ court is conducted. These departments are all more or less within the jurisdiction or under the control of the sessions or of members of that body. The two former especially have for many years been so blended that it is almost impossible to separate them. From what I have stated, and what I shall state, you will have no difficulty in believing that, had I been allowed to go into proof, I should have been able, including corruption and neglect, to have proved against their worships the full £1000 a year. The expense, inefficiency and corruption, of these lower departments, it will be recollected, formed a part of the general charge made by the writer of the letter. The preservation of the public peace is included in the duty of the magistracy; and I ask you gentlemen, if ever you knew a town of the size and respectability of Halifax where the peace was worse preserved? Scarcely a night passes that there are not cries of murder in the upper streets; scarcely a day that there are not two or three fights upon the wharves. When I lived further to the south, a Sunday seldom went by without two or three pitched battles at the foot of the street—but a police officer or a magistrate was rarely to be seen. Sometimes Mr. Fairbanks, who lived opposite, would endeavour to allay the storm; and once, I believe, Mr. Lawson knocked one or two of the rioters down and dragged them by the heels to Bridewell, but we never saw anything of the police. Boys are playing marbles and pitch-and-toss all over the streets on a Sunday without anybody to check them; and although these may be trifles, they go to prove the “slovenly system” of which this writer complains; and show with what zeal their worships performed their other duties, where money was not involved. [Having enumerated the salaries of the clerk of the peace, police magistrate, &c., in order to show that they were sufficient for the duties performed without other emoluments, he said that of these he did not complain—every man had a right to his salary, if it was fairly earned—but what the public complained of was, the enormous amount of fees, fines, &c., which went into the brick building, of which no account was ever given, and of which it was impossible to ascertain the amount.]
For every oath, summons, writ or other process, there must be a fee; and the more unequally the system of assessment bears, and the more resistance is made to the payment of taxes, the more money it brings to the police. The committee of His Majesty’s Council demanded some accounts which were necessary to assist their investigations; these were subsequently sent down to the Assembly, and I was favoured with a perusal of them. Though wretchedly confused and incomplete, there were some things in them which astonished me. There were one or two charges of £5 made by the police magistrate for committing criminals to Bridewell; and about forty entries of this kind, 2s. 6d. to a poor man, 5s. to a poor boy, and 7s. 6d. to a poor woman. I doubt if the public were aware that there was such a charity in existence, to which anybody might go and get a dollar at the county’s expense; but I expect that, after this notice, there will be plenty of applicants to-morrow.
After enumerating the various offences cognizable by the police, and for which fines were exacted, Mr. Howe proceeded—I had reckoned up the list of 1835 persons that had been in their hands for five years, and having ascertained the number, I asked a person who, from the opportunities he had for observation, I presumed would be a good judge, how many persons he thought were, on the average, in the hands of the police every week, leaving something behind. His answer was twenty-five; but one a week is the average according to the returns. It is curious to see, in looking over these accounts, how irregular and eccentric is the whole police system. In the course of twelve months there are perhaps one or two persons fined for selling rum to Indians, although drunken Indians are strewed about the market-place for two-thirds of the year. Within an equal period perhaps two or three persons are fined for having cows going at large, and then the cows are allowed to go scot free for all the rest of the year. When I lived next door to the master of the rolls, we frequently had four or five wandering about the corners for weeks together. I do not complain that the police have not exacted fines enough; that is not the complaint urged by the public or by the writer of this letter; but that they are levied by fits and starts in an arbitrary and desultory manner, by which the law is made onerous, and yet contemptible.
The jury will bear in mind that one part of the charge against the police magistrates is the extortion of sums unauthorized by law. Now is it not notorious that for years, when a person went there to complain of an assault or a crime, before any redress could be obtained—before they would issue a writ, the party was compelled to pay 3s. 6d.? For this charge there was not the shadow of law, and the practice was, I believe, discontinued, on the remonstrance of some of the newly appointed magistrates; but during the long period it was upheld, the very three-and-sixpences would amount to no inconsiderable part of the sum laid to their charge. These may be trifling matters, but they all help to illustrate the general system. I could put a poor but respectable man in the box who would tell you, that having sued another for a small debt, he met the constable on the wharf, who told him he had collected it. He treated the man in the joy of his heart, and expected to have got his money, but was told that he had paid it into the office. There he applied, but was informed that they would make the debtor pay, but he had not paid yet. That was the invariable answer, and although this occurred years ago, to this hour the poor man has not got his money. Another person I know, who has a claim of three guineas on the office—he has dunned them for years, and refuses to pay, and has not paid, his taxes for the last two years in consequence.
I could bring before you in an instant two men as respectable as any in town, who served for one year in the office of clerks of the market. They were very active, performed their duty faithfully, made a great many seizures, and of course a great many enemies; and at the end of the year they calculated that their share of the forfeitures would amount to £30. They called at the office for their money, but were told that the books were not made up. Again and again they called, and were put off with similar excuses, and though years have elapsed, they never have received a single sixpence, although they have dunned the office every time they have met in the street. It happened that oneof these men was fined 20s. for a nuisance; he refused to pay, because the office owed him, and to this day has not paid. At this time some altercation arose, and the officer (I may observe that it was not Mr. Liddell) called upon one party, and stated that if he would wait awhile for his money, he would pay off the other, ” who was a very troublesome fellow.” Away this man posted to his friend, and begged him not to take his share, unless both were paid. ” But,” said he who told me the story, ” he need not have taken the trouble for I never had the offer.” Now these men are apt to reason in this way : ” Surely the county never received credit for our £30; and as the accounts are never published, and wretchedly kept, how do we know what became of the other £30.” Would not such a state of things justify any charge? A short time since some injudicious friend put a notice into The Recorder, calling upon the community to come forward, and give me any information that might be useful to me on my trial. The next day I could not get into my office; it was crammed and the passage leading to it, with people, every one of whom had suffered some exaction, had some complaint to expose, or had had justice denied or delayed. One of them left this book, which contains the proceedings of the Grocers’ Society; and here is a letter dated a year ago, threatening to sue the police magistrate for £7, 10s., the half of some fines legally due to the society, but which he informed me had not yet been paid.
Some of these magistrates, and their functionaries, preside in the commissioners’ court. I will state one instance, in illustration of the mode in whic h debts are collected there, and of which I can speak of my own experience. Some persons seem to imagine that the liberty of the press consists in reading a newspaper for nothing. Having a dozen or two of such patrons, who ha d taken The Nova Scotian for five or six years and never paid for it, I thought I would try if the commissioners’ court could bring them to their senses. I singled out one who was well able to pay; the account was proved, the fees paid, and the magisterial machinery, as I thought, set in active motion. Time after time the money was sent for, but the answer always was, “We will make him pay, but he has not paid yet;” and all this time the party’s store was open and he walking the streets. Seven or eight months passed in this way, when Mr. Fielding, who was the constable of that court, died, and I was told that I must wait till the papers were overhauled, to ascertain if the debt had been collected. I did wait several months, found it had not, took out new process, and then expected of course to get my money. But I had to wait about seven months more, and then having written two or three notes to ascertain what was the reason of all this, I got about £4; and some weeks after, with great difficulty, obtained the remainder. Thus was justice delayed to me for eighteen months and more time wasted than would have been necessary to have collected the money without the aid of the law. But the hardship of this was, not so much as regarded the small sum in dispute, but from its preventing me from collecting all the other debts that had been standing equally long; for of course with this experience I could not again apply to the commissioners ’ court. This is my own case, but many others could tell you similar tales; these things were of daily occurrence, and if they were, can you wonder that complaints arose? These irregularities formed a part of the general system, which justified the charges of grand juries, the surprise of the executive, the investigations of the Council, and the publication of the alleged libel. I cannot be expected to illustrate the system in all its parts, but I tell you what I know; what was notoriously known to the community in December; and what was strongly impressed on my mind on the first of January, when I published the letter.
It may be said that all these things could not have existed so long, because detection was so easy. That is the natural suggestion of every mind; but let it be remembered that the mystical accounts stood between these delinquents and detection. If these had been correctly kept, methodically arranged, and regularly published, many of these corruptions could not have accumulated— this system of wrong-doing could not have been upheld. Those who paid fines would have seen them credited, and traced their appropriation; those who paid fees could have calculated the annual amount; and by comparing the sums raised with the amount to be assessed, arrears could not have accumulated. But punctuality and publicity would have given a death-blow to the system. The grand jury on which I served, with a view to accelerate reform, named a gentleman of respectability and correct business habits to supersede the old County Treasurer, believing that much of the evil was attributable to him. He has been sometimes blamed for it all, but his honesty has never been questioned, and I am now satisfied that much of the confusion that ran through his accounts was attributable to the miserable system forced upon him by the selfishness of others. A gentleman warned us at the time that we should only injure an individual, without doing any good, and I have often thought of his words. However, we named a person, but met resistance at every step in endeavouring to get him appointed; the excuse the sessions made was that the nominee was not a freeholder, although he expressed his willingness to qualify himself in an hour. So strictly did they adhere to the letter of the law in this case, though we have seen that in others they cared little for its letter or spirit.
Suppose that a man should fail in business,—if his accounts were correctl y and fairly kept, who would blame him for misfortunes? But if they were kep t in such a manner that nobody but himself could understand them, what woul d be said? Now the county accounts cannot be understood by the people or th e Government, nor by the magistrates themselves, for we had some of the m before the jury, who could not or would not unravel them. While large sum s appear in the accounts as paid to the County Treasurer, he declares he neve r received them. The functionaries explain this by saying, that instead of handing them to him, they paid them to themselves, and thus saved his percentage. To say nothing of corruption, it is evident that the system has been this: instead of allowing all sums to go into the hands of the treasurer, to pay checks in their order as they became due, the magistrates usually arrested them to pay their own demands against the establishments under their charge, or their officers seized them to pay their salaries, and thus all others in the community who had demands were left to dance attendance on the County Treasurer, who seldom had any cash. I have dunned the town, when a boy, for three years, with checks, without getting paid; and it is a matter of notoriety, that Mr. Fielding, the former jailor, repeatedly offered his checks at a discount of ten, fifteen, and I know that they were once offered at twenty per cent. Indeed, it has been supposed that pecuniary pressure, arising from trifling demands, while he had the checks of the county for a large sum in his hand, absolutely broke the poor man’s heart. Should such a system as this be allowed to bear down a public servant? Should the poor be permitted to be robbed by these ruinous discounts? Should the checks of this large and populous town be hawked about the streets, with a character so bad as to find no purchaser in the market? One circumstance I forgot to mention, that came under the notice of the grand jury on which I served. An account came in for coals furnished by a magistrate to one of the establishments. They were charged higher than they had been bought on the same day, from the same vessel, by a member of the jury; the truckage was also charged, although in the general truckage account the same items appeared. A noise was made about this, and the magistrate confessed the errors, and offered to refund the money to the foreman of the jury, who, of course, could not receive it.
Now, gentlemen, upon a calm survey of this case, as I have put it before you, can you, under that indictment, find me guilty of malicious libel? When you have examined the hardship, inequality, and oppression of the assessments, the dispositi on of the fire taxes, the miserable but costly corruptions of the Bridewell and Poorhouse, the inefficiency of the police, the malpractices of the brick building, the delay of justice in the commissioners’ court, and the confusion of the accounts, instead of punishing me for what I have done, what would you have said if I had refused to do it? Would I not have betrayed your interests and the interests of the community and forfeited the character of my paper, if I had suppressed this letter? I have not attempted to prove to a line the charges which the letter contains—that would be no defence; but I trust I have shown you, that not only had I no wicked or improper motive in this matter, but that there existed a great and overwhelming public necessity, that rendered my act one of virtue, not of malice; or, at all events, which proves that there was good ground for my belief that I was doing a duty, not committing a crime. So satisfied am I of the justice of my case, that I believe I might rest it here, and confide myself fearlessly to your firmness and discretion. But you will perceive that the recorded sentiments and deliberate proceedings of grave and responsible bodies justify all I have done. With the exception of the figures, the presentment of the grand jury at the close of the December term is a grosser libel than this letter. In that, dated in November, as regards the assessments, they say, that of the whole assessment for the year, “but £36 has been collected, and that from persons much less able to pay than many who stand on the list of defaulters; and that even this small sum has not been paid to the County Treasurer, nor, as far as they can discover, to any other person authorized to receive it;” and they naturally ask, “why individuals of reputed wealth and possessed of. sufficient means should be allowed to continue on the list of defaulters? “
In the presentment handed in at the close of the year, they say, “that a very large proportion of the taxes are suffered to remain uncollected year after year, or, if collected, not satisfactorily accounted for; that increased assessments are consequently required on those who regularly pay; and who therefore loudly complain that the collectors of taxes are permitted to pay into the hands of others instead of into the treasury, where all moneys should directly go; that the persons who thus improperly intercept and forestall the public money appropriate it to suit their own convenience, and send checks to the treasurer instead thereof; that no money can therefore be obtained to defray the current expenses, and to provide for the indispensably necessary services of the town; that some persons in consequence refuse to pay their taxes because they have claims on the county for which they cannot obtain payment; and others because they have demands against the officers of the court; that the credit of the county is absolutely so bad, that an advance of forty or fifty per. cent.” (you will remember that I said twenty or thirty) “is required in all purchases made on its account, and that in many cases credit cannot be allowed at all; that checks on the treasury are floating about in the market, and cannot obtain purchasers even at a large discount. That the public establishments are made matters of private convenience and emolument, and that when the grand jury, in the performance of their duty, institute an inquiry into the disorder and abuses, they are refused the necessary information from the officer whose duty it is to furnish it.”
They declare that they have come to the “same unsatisfactory and unpleasant result as their predecessors for many years past”; and that “many years’ experience has proved the utter inutility of pursuing the beaten track of remonstrance and complaint.” As regards the accounts they say, after noticing the correctness of those handed in by the commissioners of streets, “that they wish it was in their power to make the same favourable report of the other public accounts. In the course of their investigation the account of the commissioner of Bridewell has come under observation, and the grand jury are sorry to have to state that the nature of it is such as to preclude the possibility of reporting favourably thereon; they are therefore compelled to return it to the court as being incorrect and totally inadmissible.” “They are also compelled to return the County Treasurer’s account, which to them is incomprehensible; not so much from any fault originating with the treasurer, as from the confused manner in which the public accounts are arranged. Suitable vouchers do not accompany this account, one of which especially, an account from the collector of the taxes, and for which the grand jury applied, and was informed by the collector that his worship the Custos Rotulorum had forbidden him to furnish it; the connection between that and the other public accounts, and the confused manner in which the whole are stated, render it utterly impossible to arrive at any correct conclusion as to their accuracy. The grand jurors are therefore necessitated to return them unaudited. They have provided for the claims against the county, although they are by no means satisfied of the correctness of the statements in which those claims are embodied.”
Now, gentlemen, was it decent for men against whom such charges were publicly made by an authorized and respectable body, charges which remained unanswered and unexplained, to single out a printer and attempt to make him a scapegoat for their offences? When these abominations had gathered and swelled, and when the odour of them offended the senses of the community, instead of removing the nuisance, they said, “We will cover it up with a bill of indictment, lay Joseph Howe on top of it, and having sacrificed him no one will attempt for years to disturb the ashes, and we shall have peace in the land.”
The Governor’s opinion of these matters may be gathered from the message to the Assembly, where in calling attention to the state of our municipal affairs he says, that the revenues “annually amount to thousands of pounds,” which are not “satisfactorily accounted for”; and he concludes by requesting them to provide a remedy for the evils of “which the grand jury have, in his opinion, justly complained.” A committee of His Majesty’s Council was appointed to investigate these affairs, and the sessions sent a committee to confer with them, and, as their resolution expresses it, “to afford the said committee such general information respecting the magistrates, as shall assert their claim to the respect and confidence of that board and of the public.” Now we shall see by the committee of Council’s report, how that deputation succeeded. They had before them the accounts and returns to which I have already referred. In looking over these I was surprised to find that among other blunders, the officers had made a mistake of £10 against themselves; but I was soon relieved by finding that on the same page there was a mistake of £90, against the county.
The committee of Council addressed circulars to all the magistrates. To these they state “but few answers were received, and their import generally negatived the imputation that any reasonable ground of complaint existed, and suggested no important improvement.” I think the jury will share the astonishment which I feel, that a body chargeable with the abuses which we have reviewed to-day should have returned such answers; and it will not be much allayed when I read to them the note sent in by the worthy commissioner for Bridewell. Mr. Roach says: “Sir, I am not aware of any dissatisfaction emanating from or among the sessions of the peace. Their sessions have been conducted with great unanimity, and most ardent desire to promote the public weal.” Now, who ever suspected that there was any dissatisfaction emanating from or among the sessions? The dissatisfaction proceeded from quite a different quarter; from the people who were injured by their neglect and corruption. All was calm and tranquil within the brick building, but the storm was raging fearfully without. They were crying peace, peace, in the sessions, but in the community there was no peace. No doubt there was great unanimity and ease in the ancient Star Chamber, at the very time that the nation it oppressed was shaken with distraction and alarm. But, adds Mr. Justice Roach, “As far as I have been made acquainted with the accounts of the county, under the control of the justices in sessions, they have been readily understood, but I am sorry to say that the means for liquidating them have not been forthcoming—from the imperfection of our assessment laws, and from the refusal of grand juries to vote moneys to meet the demands on the county, and a desire manifested by that body to bring the magistrates into disrepute.” Bring them into disrepute,—I wish for his own sake that this worthy commissioner was only entitled to our contempt. The committee of conference ” seemed willing to admit that the affairs of the town were not conducted in a satisfactory manner, yet they declined to state what they conceived to be the cause of the evil or to suggest any suitable remedy”; the committee of Council had therefore “to form their own opinions from such materials and evidence as they have been able to collect ” : under the head of “magistracy generally,” they refer to the Act of 1799, which compels “all magistrates ” to attend a general or quarter sessions, to transact the ” public concerns and regulate the important business of the county,” under penalty of removal from office, and state that from the record of five years it appears that not more than three justices have usually attended the general sessions of the peace in Halifax, frequently but two, and sometimes only one. This practice the law does not sanction, but ” was passed for the express purpose of preventing it.” From this it appears that Mr. Roach himself may sometimes have formed a general sessions of the peace, and then of course there ” were no complaints emanating from or among” that immaculate body. “The public accounts do not appear to have been kept in that accurate and methodical manner so necessary to give general satisfaction. No clear views of public income and expenditure are exhibited. A person desirous of obtaining information upon one subject must make a laborious search through complicated accounts of great variety and length, and perhaps through a series of years, and may at length discover the object of his search in accounts where it could not be expected to be found. The commissioners of town property have not kept their accounts in the manner contemplated by law. There was no rent roll. No separate account of rents received and expenditures for repairs was exhibited to us, but numerous entries of this nature are promiscuously made in accounts signed by the County Treasurer. By these accounts we could not ascertain whether all rents have been paid or what sums are in arrears, or what accounts are outstanding for repairs.” We have seen the evidence upon which the magistrates acquitted the worthy commissioner for Bridewell; let us now see what the committee of Council think of that acquittal. They say, under this head, ” The affairs of this establishment, and the imputation of mismanagement generally and pointedly against one of the commissioners, was made the subject of a special presentment by the grand jury. The sessions made inquiry into the circumstances, and transmitted to this committee several affidavits relating to the subject, without expressing any opinion on them. The affidavits and the papers connected therewith are submitted. As the magistrates have expressed no disapprobation of the conduct of a person united with them in the commission of the peace and delegated by them to superintend the affairs of an important establishment, the committee will refrain from stating any stronger opinion than an expression of their regret that from the unsatisfactory manner in which the accounts were kept and the affairs of the Bridewell conducted, the grand jury had grounds of complaint.
“The accounts of the County Treasurer have been kept in so confused and irregular a manner as not only to justify the grand jury in their complaint against him, but even to subject the court of sessions to reproof for permitting an officer under their control so long to continue the practice of making up his accounts in a manner so unsatisfactory, and so little calculated to show a clear state of the pecuniary affairs of the county.”
Here, again, I feel that I could rest my case, but let me beg you to bear with me yet a little while. We have an important duty to perform—let us do it more faithfully than the magistrates have done theirs. Were I only concerned, I would not fatigue you further at this late hour, but the principles to be fixed by your verdict will be important to your children and to mine. While all the impressions which I have endeavoured to convey to your minds pressed strongly on my own, this letter came into my hands. And although it has since been voted a libel by the sessions, and has formed the groundwork of that terrible indictment, I assure you it appeared to me a very innocent affair. I might have said there are some wild charges, some loose calculations here; but if this body will cover up corruption, if they will stifle inquiry, and brave censure year after year, why, let the charge go to the public and perhaps it may arouse them to do at the ninth hour what they ought to have done at the first.
The letter commences with a quotation from Shakspeare:
“There is no truth at all i’ the oracle,
The sessions shall proceed—this is mere falsehood.”
And surely I could not have fancied that the magistrates would vote Shakspeare a libel. There was one of his characters that might have looked a little personal, that of Mr. Justice Shallow, for some of their worships were shallow enough. But where was Mr. Justice Deep? That was a character that even the fruitful imagination of the inimitable bard could not have conceived. Oh ! if the commissioner for Bridewell, or the magistrate who bore the resolution of Tuesday, could have sat to the pride of Avon, then indeed we should have had Mr. Justice Deep side by side with Shallow, and a precious pair of portraits they would have made.
I have already said, that if the alleged libel did not contain one word of truth—that if it killed half their worships, instead of merely exciting them, you could only try me by the motives and intentions by which I was influenced. The law infers malice from the publication itself, and it throws the onus of rebutting that inference on the party accused. To rebut it, he must do as I have done, explain the reasons for his conduct, and show that he was innocent from ignorance, or that some public exigency justified him in violating the strict rule of law. Have I not done so? Which of you, in my situation, would have dared to do otherwise? If this doctrine of intention were not clearly recognized by the English law and if the jury were not made the exclusive judges of the circumstances which influenced the accused, there would be no safety for the press, no freedom of discussion at all. God forbid that I should attempt to set the press above the law; society should tolerate no privileged class that are not amenable to it. I endeavour so to perform my daily duties that I can at any time come before a jury and justify my conduct if required. If, influenced by hatred and malice, I publish matter, the tendency of which is injurious, and which is justified by no public necessity, let me be punished with the utmost rigour of the law; but if, in pursuing my lawful calling, I seek the public good, even if I commit an error of judgment, I have a right to protection from a jury, and from a liberal construction of the law.
Starkie, an eminent authority on the law of libel, says: “The occasion and circumstance of a communication may supply a qualified defence, dependent on the actual intention to injure. The constituting a large and extensive barrier for the legal protection and immunity of those who act bona fide and sincerely according to the occasion and circumstances in which they are placed, is not only just in a moral point of view, and advisable in a measure of policy, but is absolutely necessary for the purposes of civil society. Were the more probable effect and tendency of a publication to be the criterion of guilt, without reference to the real motive of the author and the occasion and circumstance under which he acted, the rule would be far too exclusive for the convenience of mankind, and the evil resulting from the publication would greatly out-weigh the opposite advantages to be derived from it. It is indeed very possible that a party, actuated by the very best intentions, may propagate erroneous notions, but so long as he urges these opinions bona fide and believing them to be just, and intending to do good, his errors are not likely to prevail against the better sense and judgment of mankind to a very serious and prejudicial extent; and the continual and casual publication of erroneous opinions cannot be placed in competition with the splendid advantages which flow from permitting full and fair discussion on every subject of interest to mankind, as connected with religion, politics, philosophy and morals. The security of the public in this respect is amply provided for by distinguishing between that which is published with a sincere and honest though unsuccessful intention to do right, and malicious attempts to injure society in general, or individuals in particular, by profane blasphemies, seditions or defamatory communications.”
And again he says : “In reference to the criminal, as well as the civil branch of the subject, the occasion and circumstances of the communication may furnish either an absolute and peremptory bar to criminal responsibility, or a qualified one, dependent on the particular motive and intention with which the party was actuated in making such communication. The advantages of free and unrestricted communication on all political subjects is great and reciprocal; if the people have thus an opportunity of forming and expressing their opinions on public measures, those who administer affairs have also the means afforded them of becoming acquainted with the disposition, sentiments, and wishes of the people; of availing themselves of beneficial and useful suggestions; of affording explanation and redress where complaints are well founded; in short of securing that esteem, respect, and confidence, on the part of the people, which are essential to an useful and vigorous administration. ” “Where, ” says he, “the wilful act of publishing defamatory matter derives no excuse or qualification from collateral circumstances, none can arise from the consideration that the author of the mischief was not actuated by any deliberate and malicious intention to injure, beyond that which is necessarily to be inferred from the act itself.” This is reasonable and right, and if I had published that letter, while no complaints prevailed against the sessions; if I wilfully sent such a charge abroad, having no good ground for believing that it was true, and that investigation was necessary, then would I have grossly overstepped the line of my duty, and subjected myself to the penalties of the law. “But,” says Starkie, “the liberty of the press, and rational freedom of public discussion, are the real bolts and bars by which alone depredators on the religious and political rights of society are to be shut out, and the interests of the community preserved. To destroy these would be, in a political sense, to sleep with the doors unbolted, without the poor consolation of being able to hang the thief.”
In the trial of Perry, the Attorney-General, in his opening to the jury, observed: “From the bench you will hear laid down from the most respectable authority, the law which you are to apply to those facts. The right of every man to represent what he may conceive to be an abuse or grievance to the government of the country, if his intention in so doing be honest, and the statement made upon fair and open grounds, can never for a moment be questioned. I shall never think it my duty to prosecute any person for writing, printing and publishing fair and candid opinions on the system of the government and constitution of the country, nor for pointing out what he may honestly conceive to be grievances, nor for proposing legal means of redress.” It has often been thought strange that truth should be a libel, but it is very reasonable notwithstanding. If a man throws a cup of coffee in his wife’s face, and I publish that in a newspaper, though it may be true, yet is it libellous, because there is no public end to be served, and I have no right to invade the sanctity of private life.
Erskine, through whose exertions the Declaratory Act was passed, confirming the right of juries to decide on the law and the facts, and whose views of the true bearing of the law of libel are now generally recognized, says in his defence of the Dean of St. Asaph: “I come now to a point very material for your consideration; on which even my learned friend and I, who are brought here for the express purpose of disagreeing ‘in everything, can avow no difference of opinion; on which judges of old and of modern times, and lawyers of all interests and parties have ever agreed; namely, that even if this innocent paper were admitted to be a libel, the publication would not be criminal, if you, the jury, saw reason to believe that it was not published by the Dean with a criminal intention. It is true, that if a paper containing seditious and libellous matter, be published, the publisher is prima facie guilty of sedition, the bad intention being a legal inference from the act of publishing; but it is equally true, that he may rebut that inference by showing that he published it innocently.” Have I not in this case utterly demolished the legal inference? And again, says Erskine, in the language of all the law books, “The hostile mind is the crime which you are to decipher.” Has my mind been hostile? Where is the proof of malice?
Sir James Mackintosh, in his defence of Peltier, says : “A jury must be convinced, before they find a man guilty of libel, that his intention was to libel, not to state facts which he believed to be true, or reasonings which he thought just.” He further declares, that “This is the only offence where severe and frequent punishments not only intimidate the innocent, but deter men from meritorious acts, and from rendering the most important services to their country; they indispose and disqualify men from the most important duties which they owe to mankind. To inform the public on the conduct of those who administer public affairs, requires courage and conscious security. It is always an invidious and obnoxious office, but it is often the most necessary of all public duties. If it is not done boldly it cannot be done effectually; and it is not from writers trembling under the uplifted scourge, that we are to hope for it.”
There is a passage in Curran’s defence of Hamilton Rowan, that applies so strongly to this case, that I may be pardoned for quoting it: “And here, gentlemen, I cannot but regret that one of our countrymen should be criminally pursued for asserting the necessity of reform, at a moment when that necessity seems admitted by the Parliament itself; that this same unhappy reform shall at the same moment be a subject of legislative discussion and criminal prosecution. Who can avoid feeling the deplorable impression that must be made on the public mind, when the demand for that reform is answered by a criminal information.” I will not declaim, gentlemen, on the value of free discussion, but I will trouble you on this head with one other extract from this speech of the Irish orator. After alluding to the effects of the penal statutes, he asks: “What then remains? Only the liberty of the press, that sacred palladium, which no influence, no power, no minister, no government, which nothing but the depravity, or folly, or corruption of a jury, can ever destroy. And what calamity are the people saved from by having a public communication left open to them? I will tell you, gentlemen, what they are saved from: I will tell you also, to what both are exposed by shutting up that communication. In one case sedition speaks aloud, and walks abroad; the demagogue” (doubtless the sessions believe me to be one) “goes forth, the public eye is upon him, he frets his busy hour upon the stage; but soon, either weariness, or bribe, or punishment, or disappointment, bear him down or drive him off, and he appears no more. In the other case, how does the work of sedition go forward? Night after night the muffled rebel steals forth in the dark, and casts another and another brand upon the pile, to which, when the hour of fatal maturity shall arrive, he will supply the flame. If you doubt of the horrid consequences of suppressing the effusion of even individual discontent, look to those enslaved countries where the protection of despotism is supposed to be secured by such restraints; even the person of the despot is never there in safety. Neither the fears of the despot, nor the machinations of the slave, have any slumber; the one anticipating the moment of peril, the other watching the opportunity of aggression. The fatal crisis is equally a surprise upon both; the decisive instant is precipitated without warning, by folly on one side, or by frenzy on the other, and there is no notice of the treason till the traitor acts.”
In looking into Hone’s Trials, I was amused with a verse or two of one of his parodies, to the sentiments of which, after the labours of the day, I think we shall all respond:
“From taxes assessed, now raised at a nod,
While inspectors rule o’er us with their iron rod,
And expect homage paid them like some demi-god,
Good Lord, deliver us!
From a workhouse where hunger and poverty rage,
And distinction’s a stranger to birth, sex or age;
Lame and blind, all must work, or be coop’d in a cage,
Good Lord, deliver us!
From six in a bed in those mansions of woe,
Where nothing but beards, nails, and vermin do grow,
And from picking of oakum in cellars below,
Good Lord, deliver us!
From stickings of beef, old, wither’d and tough,
Bread like sawdust and bran, and of that not enough,
And scarcely a rag to cover our buff,
Good Lord, deliver us!”
The word oakum reminds me of some other luxuries which may be enjoyed by commissioners, in virtue of the patronage they possess. But I will not explore the recesses of the oakum-rooms; they have not spared me, but I shall be magnanimous and have some mercy upon them.
I had marked many other passages, expressive of the opinions entertained by the most eminent British authorities, of the services rendered by the press, and the benefits of free discussion. I had also prepared many references illustrative of those principles of law which I have already stated and which show with how much care the press has been protected by the spirit and practice of the law in modern times. But night is closing upon us, and I have already trespassed largely on your patience; I shall, therefore, conclude with a brief notice of the case of the King v. Reeves; on an ex-officio information, for a libel on the Constitution:
“The Attorney-General, in his opening, stated that this information had been filed by him by the direction of His Majesty, in consequence of an address of the House of Commons to him for that purpose. The House had resolved it to be a malicious, scandalous and seditious libel, tending to create jealousies and divisions amongst His Majesty’s liege subjects, and to alienate the affections of the people of this country from the Constitution; pursuing this resolution, charged the defendant with an intention to cause it to be believed that the regal power and government of this realm might, consistently with the freedom of this realm as by law established, be carried on in all its functions, though no Parliaments were holden; and the fourth count stated that it was done with intent to bring the power of the two Houses of Parliament into contempt. The question for the opinion of the jury, he said, was whether the defendant had published this book with the criminal intention charged in the information. If, on reading the whole of the pamphlet, the jury should be of that opinion, it was their duty to find the defendant guilty; but if, on the other hand, they should think that this was a mistaken execution of a good purpose, the defendant was entitled to an acquittal. He did not call for a verdict upon an inaccurate expression or ill-considered argument, if used with a good purpose.
“Plummer, for the defendant, urged the merits of the pamphlet at considerable length, contending that the book was published for a good purpose, to counteract republican principles, and that the defendant was worthy of praise, and not of censure, for the publication.
“The Attorney-General replied.
“Lord Kenyon said that the power of free discussion was the right of every subject of this country. It was a right to the fair exercise of which we are indebted more than to any other that was ever claimed by Englishmen. All the blessings we at present enjoy might be ascribed to it. It opened the way for the Reformation, and afterwards for the Revolution, and by its means were men emancipated from religious slavery in the one case, and the tyranny of the Stuarts in the other. When right was abused and excrescences arose, they might be lopped off, but at the same time, in a free country like ours, the productions of a political author should not be too hardly dealt with. In this country a defendant could never be crushed by the name of his prosecutor, however great that name might be. This was not the first prosecution commenced under the direction of the House of Commons which had failed. In the King v. Stockdale the House of Commons were also prosecutors, but the defendant in that case was not weighed down by the weight of the prosecution, nor did the jury hold themselves bound to find the publication a libel because the House of Commons had voted it to be such. The jury were in that case advised to read the whole of the book, and from the whole taken together, to decide on the delinquency or innocence of the defendant. Although the jury are to form their judgment upon the particular passage stated in the information, they may compare that with the whole book, and see how it is qualified by it.
“The jury were out a considerable time, and afterwards returned to the bar and said that they were of opinion that the pamphlet was highly improper; but, nevertheless, thought that the defendant was not actuated by a bad motive, and therefore found him not guilty. Lord Kenyon said he approved of the verdict.”