Spirit

Thomas Beamish Akins, in his historical work on early Halifax, strongly criticized the 1820 trial of William Wilkie for (seditious) libel against local magistrates. Wilkie’s pamphlet, published anonymously, led to his indictment and a two-year imprisonment sentence with hard labor, sparking public sympathy. Akins condemned the trial as tyrannical and cruel, arguing that Wilkie’s offense would be dismissed in his time. Meanwhile, Beamish Murdoch provided a more neutral account, omitting Wilkie’s name and the specifics of his crime, likely to protect Wilkie’s family reputation.

Despite the lack of attention from Joseph Howe and subsequent historians, Wilkie’s trial marked a turning point in Nova Scotia’s legal history, representing one of the first prosecutions in Nova Scotia for political (seditious) libel.

The trial, a response to his public criticism of the judiciary, demonstrated the intertwined nature of prosecutorial and judicial powers within Nova Scotia’s colonial government. While Wilkie’s case was a rare instance in Nova Scotia compared to Upper Canada, it played a significant role in shaping attitudes towards sedition and political dissent.

“Writing in the posthumously published final version of his historical chronicle of early Halifax town, lawyer-archivist Thomas Beamish Akins condemned the infamous 1820 state trial, R. v. Wilkie, in these memorable words:

An anonymous pamphlet was published from the press of A.H. [Anthony Henry] Holland, charging the magistrates of the town with malpractices, which caused much excitement. It was discovered to have been written by Mr. William Wilkie, of Halifax. He was indicted for libel, tried at the Easter term of the Supreme Court [17 April 1820] and sentenced to two years imprisonment with hard labor in the House of Correction [Bridewell]. This was esteemed a most tyrannical and cruel proceeding on the part of the government. The pamphlet was a very paltry offence, such as at the present day [1839] would be passed over with contempt. Wilkie, though not a person of much esteem, yet being a member of a respectable family in the community, should have been spared the indignities thrown upon him by Chief Justice [Sampson Salter] Blowers and the other Judges of the Supreme Court. After the sentence was known, the sympathy in his favor was very general throughout the town.

T.B. Alkins, “History of Halifax City” (1895) 8 NS Historical Society Collections [hereinafter Collections] at 195.Akins’s “History” originated as a paper read to the Halifax Mechanics’ Institute in 1839 and was first published in pamphlet form in 1847.) Akins himself, having been born in 1809, was not old enough to have formed a personal opinion of the merits of Wilkie at the time. A bibliomane, Akins’s private library at one time held two copies of ‘Wilkie’s’: S.I. Stewart, comp., A Catalogue of The Akins Collection of Books and Pamphlets (Halifax: PANS, 1933) at 79.

Akins’s jeremiad begs to be contrasted with a later, perfunctory treatment of the same event by the lawyer-chronicler, Beamish Murdoch, whose narrative history of Nova Scotia contains a rather obtuse account which omits mentioning the accused by name or even specifying the crime:

At the April term [1820] of the Supreme Court at Halifax, a young man, who had published a pamphlet, imputing blame to the magistrates in pecuniary matters, and to H. M. council, for neglect of duty in not auditing their accounts according to law, was sentenced to two years imprisonment in the house of correction, at hard labor.

B. Murdoch, A History of Nova-Scotia, or Acadie (Halifax: J. Barnes, 1867) vol. 3 at 454. Murdoch’s intention may well have been to spare the feelings of William Wilkie’s elder brother, the merchant James Charles William Wilkie (1788-1867), who was a prominent and highly-regarded citizen of Halifax, having served for many years as clerk, then cashier/ accountant, of the Halifax Banking Company [“Collins’s Bank”]. The “young man” in any case was identified by the Murdoch annotator, William John Stirling, as “A worthless profligate named Wilkie,” Public Archives of NS [hereinafter PANS],RG 1,vol.525,’ at 454 [marginalium]. Stirling, however, had an axe to grind: he was the son of the late Dr. John Stirling, who had been party to a sensational Supreme Court case in 1819, which Wilkie ridiculed in his pamphlet as a “judicial farce”.

The exceedingly meagre historiography of Wilkie rests on the dual basis that William Wilkie was the Nova Scotian parallel to Robert Gourlay, “the best-known radical” of the pre-Rebellion era, (See for example, D.A. Sutherland, “Wilkie, William,” Dictionary of Cdn. Biography [hereinafter DCB], vol. 5 at 853-54; “The Merchants of Halifax, 1815-1850: A Commercial Class in Pursuit of Metropolitan Status” (Ph.D. thesis, University of Toronto, 1975) at 117-18, 134 (nn. 59-62), “1810-1820: War and Peace” in P.A. Buckner & J.G. Reid, eds., The Atlantic Region to Confederation: A History (Toronto & Fredericton: University of Toronto Press 1994) 234 at 258-9. Here, for the first time, R. v. Wilkie is correctly identified as a case of “seditious libel.”) and the precursor of Joseph Howe.

G.V.V. Nicholls, “A Forerunner of Joseph Howe” (1927) 8 CHR 224-32. No attempt is made in the course of this ambitious undergraduate article to develop the promising theme of its title. S.D. Clark, Movements of Political Protest in Canada 1640-1840 (Toronto: University of Toronto Press 1959), who has heard of Gourlay, knows nothing about Wilkie or Howe. The Nova Scotian segment of Clark’s account (at 131 et seq.), which confines itself to the period up to and including the War of 1812-before there were any movements of political protest in Nova Scotia-thus begins too early and ends too soon to realize the stated purpose of his inquiry.

[In regard to “before there were any movements of political protest in Nova Scotia” above, there are a few other instances of spirit the author doesn’t note including the Hoffman rebellion of 1753 and the period surrounding the American revolution, of which Nova Scotia played an admittedly minor part but not without battle (at Cumberland) nor legal consequence.]

While there is something to be said for these arguments from analogy-Gourlay was twice tried unsuccessfully for seditious libel on the eve of Wilkie’ s prosecution, and Howe was tried and acquitted of seditious libel fifteen years after-neither approach addresses the significance of Wilkie as a legal proceeding for a crime against the state, nor analyses it as a successful exercise in the official repression of political dissent.

On this subject see J.S. Martell, “Origins of Self-Government in Nova Scotia: 1815-1836” (Ph.D. thesis, University of London, 1935) at 178-80, 375-76. It is suggestive of the misconceived relative importance of the two trials that Wilkie was completely ignored by both Howe himself and historians of Howe, though Howe has by no means been ignored by historians of Wilkie. The only student of Howe to have pursued the comparison was its centenary historian, George Farquhart

“This is not to say that the local impact of the trial exceeded its comparative historical value; simply that the conviction, penal sentencing and apparent banishment of Wilkie administered a quietus which deferred for ten years the movement towards law reform. It was also a premature birth, or false start, to the movement for political reform.

The reform movement began in earnest as a result of the bitterly contested “Brandy Election” of 1830, in which the struggle between the executive-cum-legislative-cum-judicial Council of Twelve and the representative Assembly precipitated the final collapse of the Loyalist Ascendancy, which had subsisted for nearly forty years. The second reform movement also climaxed in a seditious libel prosecution – of the vanguard of the “emergent opposition press,” Joseph Howe – whose newspaper, the Novascotian; or Colonial Advocate was to Halifax what William Lyon Mackenzie’s Colonial Advocate was to York – Toronto. The attempt to silence Howe failed as spectacularly in 1835 as the attempt to silence William Wilkie by the same means had succeeded in 1820, largely because Howe confined his attacks to the magistrates of Halifax. Wilkie, on the other hand, commenced with the local magistracy but then broadened the scope of his attack to include every institution of government, save only the lieutenant-governor. Wilkie, a mere eight years older than Howe, epitomized the young man of destiny in a hurry; he was sadly out of his depth and ahead of his time.

The significance of Wilkie for criminal justice history lies in the fact that, while it was by no means the first state trial to have taken place in the province, it was almost certainly the first prosecution for ‘public’ or ‘political’ libel. This paper attempts to superimpose on the Nova Scotian evidence the theoretical apparatus deployed by Barry Wright in his recent, ground-breaking study, “Sedition in Upper Canada: Contested Legality,” by focusing on the Wilkie sedition trial as the oligarchy’s instinctive response to the challenge of published public criticism. That this response assumed the form of legal proceedings for a crime against the state-seditious libel-is hardly surprising, in view of the fact that three of the four judges of the Supreme Court, as well as the attorney general, were at that time members of the Council, which one early twentieth-century wag likened to Nova Scotia’s Star Chamber.’ The prosecutorial and judicial functions of the administration of criminal justice could not be considered in any degree separate or even separable. Procedurally speaking, the integrated oligarchical structure of colonial government affected the administration of criminal justice in a manner which accentuated the interoperation, rather than the separation of powers. The crown prosecutorial and judicial authorities were interdependent, rather than independent of government (of which they formed the most influential, if not the most important part).”

“The two Nova Scotian seditious libel cases-unlike Upper Canada, there was not a concatenation of cases-permit only a qualitative analysis of the significance of political prosecutions in the criminal courts, not their quantification. The thirty-four common-law sedition prosecutions in Upper Canada between 1794 and 1828, tabulated by Wright, correspond to only one in Nova Scotia during the same period. Another major divergence between the two colonies is that while in Upper Canada, “[c]ourts were not resorted to after 1828,” in Nova Scotia the second and historically more important of the two proceedings did not take place until 1835-after the second, effective reform movement was well underway. The fifteen years which elapsed between the seditious libel trials of William Wilkie and Joseph Howe suggest that sedition proceedings in Nova Scotia, unlike Upper Canada during the same period, were indeed “isolated or extreme exceptions.”” They signified the points at which sedition crystallized in the government’s mind as seditious libel, thanks to the print medium, whether pamphlet or newspaper.”

Barry Cahill, “Sedition in Nova Scotia: R. v. Wilkie (1820) and the Incontestable Illegality of Seditious Libel before R. v. Howe (1835)” (1994) 17:2 Dal LJ 458.

https://digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=1702&context=dlj

Joseph Howe’s trial for sedition in 1835 marked a pivotal moment in Canadian history, likened to John Wilkes and Charles James Fox in significance. Howe’s defense, a masterful application of legal principles, challenged the government’s use of sedition law to silence political opposition. His arguments, rooted in fundamental freedoms and legal rights, led to his acquittal and established a precedent against repressive prosecutions. The trial showcased the interplay between law and politics, highlighting the role of sedition as a tool for stifling dissent and the importance of legal resistance in defending constitutional liberties.

Howe’s victory dismantled sedition as a crime in Nova Scotia, discouraging future prosecutions and emphasizing the power of the jury to uphold civil liberties. While Howe’s success was a blow to government repression, lasting reform required political action in the legislature, where the battle for constitutional change ultimately unfolded. Overall, Howe’s trial exemplified the complex relationship between law, politics, and individual rights in the struggle for freedom of expression and governmental accountability.

“Nova Scotia had found [in Joseph Howe] not only its John Wilkes but also its Charles James Fox.” — W.S. MacNutt, 1965

“In a seminal article published in 1974, Kenneth McNaught described Howe as one of Canada’s “two most significant cases involving political freedom of the press” — the other being Dixon for seditious libel arising from the Winnipeg General Strike of 1919. McNaught failed to mention an important early New Brunswick case (Hooper, 1830), where the proprietor-editor of the British Colonist (Saint John) was prosecuted for seditious libel after publishing, under the author’s suggestive Puritan nom-de-plume (“Hampden”), a letter castigating the legal profession and the administration of justice. Hooper, like Howe and Fred Dixon after him, defended himself — but was discharged rather than acquitted, due to a hung jury and the trial judge’s advice to the attorney-general to stay the proceedings. Whether Hooper’s discharge or Howe’s acquittal established, preserved or strengthened the freedom of the press is a moot point which, regardless of how it is decided, does not provide the key to understanding either the legal or historical context of Howe’s trial for sedition. Yet traditional scholarship fails to offer a properly contextualized legal or political analysis of Howe, which was by any definition a state trial.

Another question which requires attention is whether the prosecution of Joseph Howe for sedition would have taken place at all had Howe’s newspaper not been the voice of radical political opposition to Halifax’s corrupt, inefficient and unreformed government. This self-perpetuating gerontocracy of justices of the peace, based on the old English model, had ruled Halifax since its founding in 1749. It had been resisting any and all attempts at civic incorporation since 1785, when Saint John, Canada’s first city, was incorporated. Published criticism of the magistrateship tended to be construed as criticism of the executive branch — the lieutenant-governor and council — who “were equally supreme in the control of town affairs as those of the province at large.

The grand jury for the year 1835 was impaneled on the opening day of Hilary Term and formally charged by the chief justice. The date was later than usual, but in good time for the spring sitting of the Quarter Sessions on 3 March. Both Howe’s half-brother Joseph Austen and the two magistrates, James Noble Shannon and John Leander Starr, sought and received permission to withdraw when, on 17 February, the attorney-general came to the grand jury room and presented to the foreman an indictment against Joseph Howe for libel. Howe afterwards read into the record a passage from the now lost indictment which makes crystal clear that the charge was seditious libel:

“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 … [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….”

“Though the grand jury had ample opportunity to quash the indictment, they chose instead not to run the risk of antagonizing the government by forcing the attorney-general either to discontinue the prosecution or to lay an ex officio criminal information. Returning true bill suggests timidity on the part of the grand jury in the exercise of their investigative function — at least where political trials were concerned — and their action was not even remotely comparable to the independence and assertiveness of earlier, reformist grand juries. If the neo-conservative grand jury of 1835 had been of the same political stripe as that of 1834, then the bill would certainly have been rejected. Everything turned on the composition of the new grand juiy: whether to prosecute; whom to prosecute; by what means to prosecute.”

“This was not mere criminal libel – defamation; this was sedition. “That is not the law as respects public bodies,” stated Archibald. “It does not allow the defendant to escape in this way.” The attorney-general then sketched the common-law crime of sedition, omitting Fox’s Libel Act, which had already been covered by lead counsel. Archibald’s contention that the defendant’s rebuttal of the crown’s inference of malice was “unknown to the law” differed from Howe’s constructive application of the Act, according to which the jury was not required to convict solely on the basis of the sense ascribed to the alleged libel in the indictment. In other words, the effect of construing the Act as Howe did was to undermine the common-law rule that the intention of the writer is to be gathered from the words written. The accused had argued forcefully that if the crown had the right to infer malice from the content of the alleged libel, then the jury had the right to reject that inference, and to determine on other grounds the presence or absence of seditious intention.
Recognizing the weak self-interestedness of the crown’s case, Archibald focused more on its procedural than on its substantive aspects. Indeed, he came dangerously close to suggesting that the government had prosecuted for sedition in order to forestall the magistrates impoliticly initiating an action for defamation:
If the nature of the charge [against the magistrates] would have allowed of a private prosecution, the defendant would then have been obliged to put his justification upon the record, and to prove the truth of it by witnesses placed in the box and examined on oath, not by hearsay, nor even by the report of a committee of His Majesty’s Council.”

“Howe’s defence was built on the bedrock of law, not the sand of fact; and it was as ingenious as it was brilliant in its simplicity. The proceeding must have induced in Chief Justice Halliburton a sense of déjà vu; he had been on the bench in 1820, when Chief Justice Sampson Salter Blowers delivered his charge to the jury in Wilkie. Fifteen years later, Halliburton, having succeeded Blowers in 1833, now found himself presiding over only the second seditious libel trial to have occurred in the province. The charge was a congeries of evasion, irrelevancy and prejudication, which strikingly illustrated Halliburton’s too limited experience at the bar; as a lawyer, the chief justice was much the inferior of his contemporary, the attorney-general. Indeed, the only constructive parts of his charge were those which regurgitated the attorney-general’s reply. Like Archibald before him, Halliburton was at pains to explain the nature of the prosecution in order to justify, if not cloak, its purpose. As the trial proceeded, it became clear that it was the crown, not the accused, that was on the defensive.”

Howe was the first, and would be the only, acquittal of an accused seditionist in Nova Scotia. “Your verdict will be the most important in its consequences ever delivered before this tribunal,” Howe admonished the jury in his defence, implying that the liberty of the press might be in jeopardy if it were to find against him. A defence which persuaded a trial jury, applying Fox’s Libel Act, to return a verdict of not guilty cannot reasonably be described as “from the point of view of the law…magnificently irrelevant.” Such an interpretation ignores the truism that the jury was ultimately the judge of both law and fact. The trial judge could only advise and warn, direct and instruct — and then consent to the verdict, regardless of what it was. The jury’s responsibility in sedition cases was greater still because there was no clear, positive law defining seditious libel; that was for the courts to determine by reference to case law. As part of received English criminal procedure — consistent with Nova Scotia’s common-law reception protocol — Fox’s Libel Act was deemed automatically to be in force. It was declaratory, affirmative and ameliorative of the common law of libel, and tended to enhance the liberty of the subject. To be sure, both Attorney-General Archibald and Chief Justice Halliburton passed over in deafening silence an Act which they knew to be the strongest weapon in Howe’s tiny legal arsenal. However, Gray had already elucidated it in presenting the crown’s case; and the accused made much of it in his defence. The attorney- general and the chief justice may therefore have concluded that the less said about it the better. They could hardly have taken exception to Howe’s account of it, which was correct and compelling in every way.

The suggestion that the law was disregarded by the jury is likewise mistaken. The opposite is true; the law was scrupulously regarded by a jury exercising their prerogative under Fox’s Libel Act to give a general verdict on the evidence. They found that there was no seditious libel, not because the statements in “The People” were true or because their publication by the accused had been for the public benefit, but because there was no seditious intention. Howe’s forensic enabled the jury to infer absence of malice from truth and public benefit, these being the two elements which would afterwards combine in the Libel Act, 1843 (“Lord Campbell’s Act”) to form the justification defence to criminal defamation. That the crown inferred malice from the publication, without attempting to prove seditious intention, was an attempt to presume the accused guilty, as it were, until he could prove himself innocent.”

“Though the bar was, for Howe, the career path not taken, he had conducted an intensive study of both the state-trials case law and the treatises. By no means “magnificently irrelevant” from the point of view of law, Howe’s defence exploited to the full the resources of criminal procedure. Though the accused undoubtedly “stated a great variety of things which could not be evidence,” he had also stated more law than either the attorney-general in his summation or the chief justice in his charge to the jury. To the extent to which doubts respecting the function of juries in libel cases were removed by Fox’s Libel Act, Howe construed the remedial statute liberally. Hence the correctness of the jury’s decision “to take its view of libel, not from Archibald, not from Halliburton, but from Howe, and bring in a verdict of ‘not guilty.’” Despite the brilliance of his forensic oratory, Howe’s triumph was more forensic than oratorical in character. To paraphrase Beck, the accused had in effect convinced the jury that the procedural law applicable to their function in a seditious libel case empowered them honourably to acquit him.”

Howe’s crash-course mastery of sedition law à la Thomas Erskine figured prominently in his defence to the charge. Unlike Wilkie, he argued not for truth as a defence to seditious libel but for a narrower definition of it that excluded fair comment. Yet there was no criticism of the administration of justice — as in Hooper, and also to some extent in Wilkie — and no allegations that the magistrates were guilty of misfeasance. This is what distinguishes Howe from both Wilkie and Hooper, where the crown’s case was stronger and the verdicts guilty. While the resort to sedition law bore the legitimacy of precedent, it was a double-edged sword, as Attorney-General Archibald realized. Despite the chief justice’s rather unsubtle attempt to direct a verdict of conviction, the government could not depend on a trial jury to toe the line; and, because of Archibald’s unwillingness to allow either of the law officers lead for the prosecution, Howe was able to exploit with spectacular success the very public forum of a trial at bar in the Supreme Court. As Howe’s triumph demonstrates, the government’s prosecutorial monopoly and control of the judiciary did not mean that a struggle such as Howe’s was a purely self-defensive reaction to an undefendable charge arising from the repressive use of the criminal law. The fact that truth could not be pleaded as a defence to seditious libel did not mean that there was no defence.

The Howe case is a uniquely rich exemplification of contested legality. An analysis of Howe’s great speech in his own defence reveals not only the legal sophistication of the accused, but also highlights the importance of law-finding in the verdicts of libel juries. Howe’s arguments from fundamental freedoms and legal and equality rights thoroughly discredited the charge against him. They derived from his belief in the jury’s obligation to safeguard hard-won constitutional liberties, such as freedom of the press (only recently achieved in England), and to oppose by their verdict repressive use of the criminal law by government. The very nature of sedition law and the deep interpenetration of government and the judiciary under the ancien régime placed in high relief concerns about crown prosecutorial responsibility, the independence of the grand jury, and the impartiality of the bench.

The fact that the Nova Scotia government controlled the inauguration of state- criminal proceedings was hardly a controversial departure from English practice, as it was in Upper Canada in the 1820s and New Brunswick in 1830-1. The attorney-general’s monopoly over crown prosecutions (which by no means precluded private prosecutions) was benign — except when the government ordered the prosecution of a suspected political criminal. Despite the fact that the ex officio criminal information formed no part of received English criminal procedure in Nova Scotia, Attorney-General Archibald could easily have proceeded by that mode – simply because the offence charged was sedition (a public libel) rather than defamation (a private libel). That he did not to do so, and explained why in his summation, is a most telling illustration of the triumph of constitutionalism over legal repression.”

“The trial jury’s freedom to render a general verdict was based on the recognition that Fox’s Libel Act was of full force and effect in Nova Scotia and that it applied to all forms of libel, public (seditious, obscene, blasphemous) as well as private (defamatory). Trial by jury and verdict according to conscience — central to civil-libertarian opposition to the development of sedition law in eighteenth-century England, and virtually suspended in Upper Canada under the Seditious Aliens Act (1804-1829) — were taken for granted in Nova Scotia. As is clear from Howe, Erskine’s famous arguments on the trial jury’s right to deliver a general verdict were recapitulated, and Nova Scotia’s instantaneous reception of the common-law declaratory Libel Act was reconfirmed. Upper Canada, where the need was greater because of a punitive sedition statute, did not have the benefit of Fox’s Libel Act. Ultimately, it fell to the jury in Howe to become the voice of popular protest against oppressive prosecutions and Sessional misgovemment, as that role had been abdicated by the new neo-conservative grand jury. Though the accused in his defence suggested no such thing, the trial jury by their verdict sent a clear message to the Council and the magistrates that the local government was inefficient and corrupt and required reform or replacement.”

“As an episode in Canadian law and Canadian history, Howe clearly demonstrates the very broad applications of a judicially-legislated offence like seditious libel. As J.M. Bumsted has written in another context, “Seditious libel was the classic Anglo-Canadian charge used by those seeking to muzzle public criticism.” Seditious libel had more of sedition than of libel about it. The long-term politico-legal effect of Howe was to extinguish sedition as a crime in Nova Scotia; there would not be another prosecution for nearly ninety years. Before Howe, seditious libel prosecutions were an assured conviction; after Howe, they were deemed risky, counter-productive and not worth pursuing.

Sociolegal history is essential to understanding the interrelationship of law and politics and government’s use of the former to regulate and control the latter. Certainly the Nova Scotian sedition cases – Hoffman (1753), Wilkie (1820), Howe (1835) and McLachlan (1923) – document the overwhelming importance of political crime both to the colonial state and to the experience of “conservative” reformers such as Joseph Howe, not to mention radical ones such as William Wilkie and J.B. McLachlan. Sedition law was an extreme and usually effective means of censoring extra-legislative political discourse. Prosecutions were designed to intimidate influential public opinion-makers and neutralize potential leaders of a popular opposition, by stigmatizing pro bono publico criticism as untrue and unfair and imputing a spirit of disloyalty to it. Yet while serving to justify and excuse its repressive use by government, the law was multi-purpose. Victims of the prosecution could use the machinery of the criminal law to contest legal repression by government. Sedition as an instance and instrument of the repressive use of criminal law reveals tensions between rule of law and rule of government, state and people, authority and discretion — articulated in concerns about government control of public prosecutions, the grand jury and the judiciary. Howe’s great hopes and expectations for British justice had everything to do with constitutionalism and nothing with legalism. Howe’s optimistic sentiments bespoke his fundamental belief in the system, his belief that the rule of law was the guarantee of the liberty of the subject and of equality before and under the law. The source of Howe’s immense popular appeal as a victim who refused to lie down was not that the government had deprived him of his constitutional rights, but that they had falsely and maliciously accused him of, and prosecuted him for a crime which he had not committed. He used the law decisively to remedy its misuse by government, a strategy which highlighted the political inexpediency of legal repression. What had worked before would not work again because it was wrong.

The positive effect of Howe’s success, however, should not be exaggerated. The fact that public prosecutions were always initiated by government meant that trials in the Supreme Court were risky self-defensive exercises, which, while not precluding the possibility of unanticipated acquittals, made their occurrence improbable. And it is evident that claims of contestability, which defied precedent and the collective wisdom of the legal profession, were weak on their face — given government control of the prosecution process in state trials. Nevertheless, the effect of Howe’s acquittal was to checkmate legal repression by holding the magistrates accountable, and embarrassing the government in such a manner as to kick-start reform in the legislative sphere. The reform leadership-in-waiting— in other words, the lawyers who would not defend Howe in that most public of all public forums, the Supreme Court — declined to do so in part because they realized that the more important struggles ultimately had to take place in the political arena, in the House of Assembly, and not in extra-parliamentary forums such as the grand jury and the liberal press. Repressive prosecutions, the political use of the criminal law and ancillary crimes against the state could only be effectively resisted if “high-profile” acquittals were procured. Legal successes, especially surprising ones, caused massive loss of face and credibility on the part of government, and unquestionably discouraged resort to sedition law after 1835. However, constitutional reform could only be secured by political action in the legislature. From 1836, when the final battle was joined, until 1848, when final victory was won, the legislature – not the courts – would be the arena of political struggle in Nova Scotia”

Cahill, J Barry. ‘Sedition in Nova Scotia: R. v. Howe (1835) and the ‘Contested Legality’ of Seditious Libel’ University of New Brunswick Law Journal, Vol 51, 2002, pp. 95 – 140. https://web.archive.org/web/20210207140058/https://core.ac.uk/download/pdf/288207148.pdf