Libel Defence
Mr. Howe's Defense: (March 2, 1835)
Here then you see, gentlemen, that the whole gist of the offence was the defendant's intention, and you see the doctrine admitted in its fullest extent by the crown officer, the judge and the jury. You see also the noble spirit of independence, the firm and unbending integrity, which distinguish an English court of justice. There an innocent man was protected by the law against the whole power of the House of Commons, as your verdict will protect me to-day against the persecution of the sessions. Without this doctrine of intention, the law, instead of being a parental guardian of the press, protecting its lawful acts, and checking its abuses, would be a tyrant binding it with chains.
It has been said by the eloquent Mackintosh, "That an English jury is the most refreshing prospect that the eye of accused innocence ever met in a human tribunal." I feel this day that the sentiment is just. An English jury will do justice to the poorest wretch on earth, though menaced by the proudest oppressor. The victim may be bound, and prepared for sacrifice, but an English jury will cast around him the impenetrable shield of the British law. Gentlemen, I feel that your verdict will rescue me from the perils with which I have been environed. You will not deliver me over to the tender mercies of the sessions. You will tell these jobbing justices that they should have come into court with clean hands; that they should have "set their house in order "—their Poorhouse and their Workhouse, before they came to claim a verdict to repair their rotten reputations. You will not send me to serve the commissioner of Bridewell, or permit them to make me the first tenant of the stocks they erected in the market-place, but never have used.
I thought of gathering from the newspaper files the various attacks that have been made from time to time upon the sessions and their officers, in order to exhibit to you the gradual swelling of this volume of abuse of which their worships complain. The task would have been an amusing one, and although it would prove that my persecutors had been for years deaf to the complaints of the community, and had only become suddenly sensitive, when they thought the whole might be answered by a bill of indictment, the process would have been tedious, and I have already taken up too much of your time.
Gentlemen, I have thus gone over the facts that rested on my mind at the time I published the alleged libel; I have shown the bearing and depth of the impressions they made; and have, I trust, convinced you, of the entire absence of any malicious motive. I have also stated to you what I believe to be the sound and rational construction of the English law; and I have read to you the eulogiums which Britons on the other side of the Atlantic have passed on the value of the press. I now put it to you, whether you will or not, as an English jury would, take all the circumstances of the case into consideration to rebut the legal inference of malice; and I ask you, if you will not extend to the press of your country the same rational protection which the British press enjoys? Can you err, in following the example of that country, which has been so long the home of liberty; whose noble institutions have been the fruits of free discussion, and under whose banner and whose laws we are now assembled? I do not ask you to set the press above that law which Coke calls "the perfection of reason"; but I ask you to cleanse me in that wholesome stream of British authorities revered at home, and imparting its benevolent and invigorating influence to the most distant portions of the empire.
Will you, my countrymen, the descendants of these men, warmed by their blood, inheriting their language, and having the principles for which they struggled confided to your care, allow them to be violated in your hands? Will you permit the sacred fire of liberty, brought by your fathers from the venerable temples of Britain, to be quenched and trodden out on the simple altars they have raised? Your verdict will be the most important in its consequences ever delivered before this tribunal; and I conjure you to judge me by the principles of English law, and to leave an unshackled press as a legacy to your children. You remember the press in your hours of conviviality and mirth—oh ! do not desert it in this its day of trial.
If for a moment I could fancy that your verdict would stain me with crime, cramp my resources by fines, and cast my body into prison, even then I would endeavour to seek elsewhere for consolation and support. Even then I would not desert my principles, nor abandon the path that the generous impulses of youth selected, and which my riper judgment sanctions and approves. I would toil on and hope for better times—till the principles of British liberty and British law had become more generally diffused, and had forced their way into the hearts of my countrymen. In the meantime I would endeavour to guard their interests—to protect their liberties; and, while Providence lent me health and strength, the independence of the press should never be violated in my hands. Nor is there a living thing beneath my roof that would not aid me in this struggle : the wife who sits by my fireside; the children who play around my hearth; the orphan boys in my office, whom it is my pride and pleasure to instruct from day to day in the obligations they owe to their profession and their country, would never suffer the press to be wounded through my side. We would wear the coarsest raiment; we would eat the poorest food; and crawl at night into the veriest hovel in the land to rest our weary limbs, but cheerful and undaunted hearts; and these jobbing justices should feel, that one frugal and united family could withstand their persecution, defy their power, and maintain the freedom of the press. Yes, gentlemen, come what will, while I live, Nova Scotia shall have the blessing of an open and unshackled press. But you will not put me to such straits as these; you will send me home to the bosom of my family, with my conduct sanctioned and approved; your verdict will engraft upon our soil those invaluable principles that are our best security and defence.
Your verdict will, I trust, go far towards curing many of the evils which we have been compelled to review. Were you to condemn me, these men would say there is no truth in those charges, there is nothing wrong, and matters would continue in the old beaten track. If you acquit me, as I trust you will, they must form themselves into a court of inquiry for self-reformation; they must drive out from among them those men who bring disgrace on their ranks, and mischief on the community in which they reside. But, gentlemen, I fearlessly consign myself, and what is of more consequence, your country's press, into your hands. I do not ask for the impunity which the American press enjoys, though its greater latitude is defended by the opinions of Chancellor Kent; but give me what a British subject has a right to claim impartial justice, administered by those principles of the English law that our forefathers fixed and have bequeathed. Let not the sons of the Rebels look across the border to the sons of the Loyalists, and reproach them that their press is not free.
If I wished to be tried by your sympathies I might safely appeal to you, who have known me from my childhood, and ask if you ever found malice in my heart, or sedition in my hands? My public life is before you; and I know you will believe me when I say, that when I sit down in solitude to the labours of my profession, the only questions I ask myself are, What is right? What is just? What is for the public good? I am of no party; but I hold that when I am performing my duty to the country, I am sincerely doing that which I engaged to do when I took the press into my hands. You will hear the Attorney-General close this case on the part of the Crown, but do not allow yourselves to be won by his eloquence from the plain facts and simple principles I have stated. I must, however, do that gentleman the justice to acknowledge that in the conduct of this prosecution I have received nothing but courtesy at his hands. As an officer of the Crown he is bound to perform this public duty, but I well know that persecutions of the press are little to his taste. When urged at times by members of the Assembly, over which in his capacity of Speaker he presides, to resent attacks made on that body in The Nova Scotian, his answer has invariably been : "No! let the press alone; if we cannot stand I his powers of oratory, how I could have set this case before you!
" Were I Brutus,
And Brutus Antony, there were an Antony
That should move the very stones, "
not of Halifax to mutiny and sedition, but the broken stones in Bridewell to laughter and to scorn. The light of his penetrating intellect would have revealed the darkest recesses of municipal corruption; and with the hand of a master he would have sketched the portraits of these jobbing justices, and hanging them around the walls of Bridewell, would have damned them to imperishable renown.
To the gentlemen of the bar, who surround me, my thanks are also due. They have sympathized with the press in this its day of persecution; they have sent me books and volunteered assistance; and although the press sometimes bears upon them, those who are and will be the brightest ornaments of the profession have been most forward in endeavouring to sustain it. Their studies teach them the value of free discussion; they know the obligations which Englishmen owe to the press; and they well know, that as the securities of life and property were strengthened by its influence, so would they be destroyed beneath its ruins.
Gentlemen, I must apologize for the time which I have occupied, and for the errors and imperfections of this defence. But I now leave it in your hands, confident that you will discharge your duty and do me justice. I have never shrunk from responsibility, and I would again remind you that I would rather be cast into a prison for years than meet you in after life to reproach me with having misled you this day by false statements of fact or law. I have not done so, and I feel that I am entitled to your verdict. The press has constantly vindicated and maintained the independence of juries; English juries have been the steady friends and protectors of the press; and I now commit myself and the press of Nova Scotia to your keeping, asking only for justice, sanctioned by English law.
The delivery of this speech occupied about six hours and a quarter. The defendant was frequently interrupted by expressions of popular feeling. The Attorney-General, Mr. S. G. W. Archibald, rose to reply, but was interrupted by the Chief-Justice, who said that as the hour was late, and the jury had been confined so long, it would be better to adjourn the court. Mr. Murdoch remonstrated; Mr. Howe, he believed, had brought his defence to a close much sooner than intended in order to avoid the necessity of adjourning the trial. It would be unfair, therefore, to allow the other side the against its assaults, we deserve to fall." That, I doubt not, would have been his advice to the magistrates had they deigned to consult him. But oh! had advantage of the night to reconstruct their case. Mr. Howe begged the court to believe that he did not wish to shut out anything that could shake his statements; all he wished was to have the matter off his mind. The jury were consulted, and the foreman expressed their wish to remain; it was therefore determined to do so, but the crowd and the excitement being so great, and the difficulty of preserving order evident, his Lordship adjourned the court.
