Whigs

“Then there is Howe, who was prosecuted by the corrupt magistrates whom he exposed in his day. By the way, he successfully defended himself, and I hope to perhaps follow his glorious example. He is now proclaimed as Nova Scotia’s noblest son.” — FJ. Dixon, 1920

“When they tried Joseph Howe for sedition, they erected a monument to him in the shadow of the County jail [sic: Province House yard].” — J.B. McLachlan, 1924

“I am not a prophet, nor the son of a prophet, but I tell you that what happened to Howe will happen to McLachlan.” — J.S. Woodsworth, 1924

In Halifax, in 1835, Joseph Howe, a newspaper proprietor and editor, was tried for seditious libel for publishing the second of two pseudonymous letters critical of local government. In Winnipeg, in 1920, F J. (Fred) Dixon, an independent labour member of the Legislative Assembly of Manitoba, was tried for seditious libel for publishing in the strike bulletin which he briefly edited during the General Strike of 1919, articles critical of the strike’s suppression. In Halifax, in 1923, J.B. McLachlan, communist secretary of United Mine Workers of America District, was tried for seditious libel for having written an official letter critical of the violent actions of the provincial police in Sydney. These three “state trials” document the important historical conflicts out of which they arose, reflect the politico-legal contexts in which they occurred and illustrate the meaning of the “misrule of law” as it developed through the repressive exercise of state power during both the colonial and the national periods.”

“Ironically, the industrial action which led to the prosecution of McLachlan did not originate with the Cape Breton coalminers. In June 1923, Sydney steelworkers struck again for recognition of their union. When mounted provincial police, who had been summoned at the behest of the British Empire Steel Corporation (Besco), made a bloody charge against the Sunday evening crowd on Victoria Road in Sydney on July 1, McLachlan, in his capacity as secretary of District 26, authorized a wildcat strike. “This was a fateful decision,” writes David Frank, quoting McLachlan’s official letter (sea Appendix 1), one that brought down the wrath first of the provincial government and then of the international union. For his call to arms McLachlan was charged with seditious libel and subsequently sentenced to two years in jail. For his violation of international union polity in calling the sympathetic strike he was removed from office by John L. Lewis [president] of the United Mine Workers. McLachlan was prosecuted because he was the leader of an illegal sympathetic strike. The seditious libel for which he was convicted was an official letter signed and ordered circulated by McLachlan in his capacity as secretary of District 26 of the UMWA.”

“The parallels to Howe rest with Fred Dixon, who was acquitted after defending himself in a great forensic address purposely modelled on Howe’s. McLachlan, on the other hand, was dissuaded from defending himself, did not testify on his own behalf and was perfunctorily convicted. “[C]ivil libertarians, then and since,” according to Howe’s biographer, Murray Beck, “have excoriated the [McLachlan] trial for its alleged unfairness.” Yet, Beck too refuses to acknowledge any parallels between Howe and McLachlan. He forbears describing Howe as “seditious libel,” a technical term he uses in relation to McLachlan, and does not confront the suspicion that chief counsel for the defence, Gordon Sidney Harrington K.C., (in David Frank’s words) “deliberately exploited the case to promote the fortunes of the Conservative Party and prove the iniquity of the Liberal government.” Beck also fails to identify “McLachlan’s lawyers” as two politically ambitious Conservative barristers — the other was Halifax labour lawyer, John Archibald Walker — both of whom were elected to the Assembly in the Conservative sweep of 1925 and appointed to the cabinet. Harrington, a former mayor of Glace Bay, which was also home town to McLachlan and headquarters of District 26 of the UMWA, was counsel to the union.”

“McLachlan — unlike Howe and Dixon — was a gross miscarriage of justice, in which the accused was “framed”, charged, tried, convicted and imprisoned for having published a seditious libel when in neither the legal nor the ordinary sense of the word had he published anything at all. Before the “fixed” publication, the Crown did not have even a prima facie case against the accused. The obvious motive for the government’s conniving at newspaper publication was not only to lay the basis for the charge of seditious libel, but also to give some reason for McLachlan’s incarceration and transportation to Halifax, which Attorney-General O’Hearn was later to characterize as “a neutral [safe?] county.” The very possibility of contesting the legal repression – by achieving a counter-hegemonic success à la Howe and Dixon — was precluded by the careful manner in which the government stage-managed the proceedings against McLachlan from beginning to end. Circumstantial evidence suggests that the McLachlan prosecution was the result of a conspiracy involving the Red-baiting provincial Liberal government, the management of Besco and the proprietor of the Morning Chronicle — the only Halifax newspaper in which McLachlan’s official letter was published. The District circular appeared verbatim on the front page of the edition of 6 July 1923 — a mere two days after it was issued — under the incendiary sub-headline, “McLachlan’s War Whoop.” Publication in Halifax had been arranged by Andrew Merkel, Maritime superintendent of The Canadian Press, whose vice-president, George Frederick Pearson, was also hereditary president of the Chronicle Publishing Company Limited. A lawyer and highly influential political insider — Beck describes him as “long a mastermind of the Liberal Party” — G. Fred Pearson was also Besco’s solicitor. Though McLachlan’s conviction for publication in Halifax was eventually struck down on appeal, at the time of the trial even the strongest legal defence would have been ineffectual against a government partial to Besco, a mass-circulation morning newspaper complicitously toeing the government’s line, an “anti-Bolshevik” Attorney-General prosecuting in person, a manipulable jury altogether unacquainted with labour-management relations in industrial Cape Breton, and an highly interested judge. Presiding over McLachlan was Justice Humphrey Mellish, a corporate lawyer and former solicitor for the Dominion Coal Company — who was elevated to the bench in 1918, so that he could more effectively protect the interests of his former corporate clients. The fact that Mellish’s law firm, Mclnnes Jenks Lovett & Macdonald [now Mclnnes Cooper & Robertson], was in Besco’s pocket — the senior partner, Hector Mclnnes, was a director of the corporation — was sharply emphasized by J.S. Woodsworth MP in House of Commons debate in March 1924, following the announcement of the government’s decision to parole McLachlan. Woodsworth, who toured Nova Scotia in January 1924 at the invitation of the Nova Scotia Workers Defence Committee, enquired “concerning the judges of the supreme court, and… was told that the corporation influence on the bench was so strong that the court is looked upon by labour as a company department.” Charges of seditious libel against Woodsworth, a former editor of Winnipeg’s Strike Bulletin, were indefinitely stayed when Fred Dixon was acquitted of the same charge. Woodsworth read into Hansard the words uttered by Joseph Howe before the jury while introducing his discussion of The Libel Act 1792: It is ninety years since in Nova Scotia a man was tried for sedition. Then a man was haled before the courts and accused of being “a wicked seditious and ill-disposed person, a person of most wicked and malicious temper and disposition.” That man is now regarded as one of Canada’s greatest sons, Joseph Howe. But he was able to say at that time, in connection with his trial: “And here I may be permitted to thank heaven and our ancestors, that I do not stand before a corrupt and venal court and a packed and predetermined jury.’,

Joseph Howe’s trial for seditious libel, eighty-eight years before McLachlan’s, has never been excoriated for unfairness by civil libertarians or anyone else, because Howe was tried by an impartial, disinterested judge — Chief Justice Brenton Halliburton — and acquitted by an enlightened jury. Indeed the canonical, politico-biographical interpretation of Howe does not consider the possibility that this too was a trial for sedition, lest it be compared with the trial of the politically persona non grata working-class radical, J.B. McLachlan. Repeated ad nauseam is the canard that Howe was tried for “criminal” libel, suggesting that the dual character of defamation as crime and tort could disprove the self-evident truth that Howe too was tried for seditious libel. Indeed the very success of Howe’s self-defence accounts for this misunderstanding of his trial, which resulted in an acquittal despite the fact that the truth of a libel was not pleadable except as a defence to an action, and that neither truth nor public benefit could be pleaded in justification of a seditious libel.”

“Joseph Howe — it needs to be said — was neither arrested nor jailed, though he expected to be and arranged for bail to be posted by his friends, while McLachlan and Livingstone were not only arrested, transported to Halifax and imprisoned, but were initially denied bail at the instance of the Crown. Nor was Howe’s venue changed from Halifax to Sydney, to be tried by a jury of coalminers, who had as little understanding of abuses in the administration of local government in the District of Halifax as the jury of Halifax petit-bourgeois who convicted McLachlan had of labour relations in industrial Cape Breton. The Crown failed to make its case in Howe and Dixon and would have failed to do so in McLachlan had he too been tried by a jury of his peers. Howe — tried and acquitted by sympathetic friends and neighbours and readers of his reformist newspaper, the Novascotian — was thought by the Halifax bar, who to a man refused his retainer, to be foredoomed. Conversely, McLachlan’s lawyer, seeing in his client a latter-day Howe, was overconfident of victory.”

“In preparing his defence of McLachlan, Harrington, like Dixon, availed himself of The Speeches and Public Letters of Joseph Howe, a new and complete edition of which had been produced in 1909 in a commendably bipartisan manner. The publisher was the Halifax Chronicle, the Liberal Party organ founded in 1844 and once edited by Joseph Howe, while the reviser was the prominent Conservative lawyer and municipal politician, Joseph Andrew Chisholm K.C. Chisholm, who in 1916 acceded to a puisne judgeship, played a significant collateral role in the proceedings against McLachlan. In June 1923, he presided at the criminal assizes in Sydney, when, according to Attorney-General O’Hearn, “in the neighbourhood of twenty-odd bills of indictment against strikers for their criminal activities in February 1923, were thrown out” by the grand jury for lack of witnesses willing to testify. Chisholm was also, according to J.S. Woodsworth, one of only two of seven judges of the Supreme Court of Nova Scotia who had had no “known relations” with Besco or its constituent operating companies.”

“What mattered were the changes in Canada between 1919 and 1923. By the latter date, sedition law was being used systematically against working-class radicals in general and strike leaders in particular, regardless of their lack of socialist credentials — a tendency strikingly illustrated by the prosecution of Fred Dixon MLA. Not only had new repressive state security laws been introduced, but also the state’s determination to repress working-class radicalism had been renewed since 1919 and the range of potential uses of existing sedition law accordingly broadened. If the significance of Howe for McLachlan relates more to the forensic use of history than to the forensic use of law, then McLachlan is an object lesson in the failure of legal history as legal argument. It is not a question of the uses or sources of law, however, because Howe, as a jury trial resulting in an acquittal did not form a legal precedent. Howe in relation to McLachlan concerns the historical uses of law versus the juridical uses of history, and in either respect depends upon a mutually agreed, authoritative and analytically sound reconstruction of the leading case. When the Crown denied the existence of any previous trials for sedition in Nova Scotia, the defence attempted unsuccessfully to adduce Howe as a precedent.”

“G.S. Harrington, who had never practised in Halifax and was far from being the “noted barrister” of John Mellor’s rose-coloured romance, was facing one of the leading criminal counsel of the Halifax bar in Attorney-General O’Hearn. Harrington nevertheless aimed to achieve, without any help from his client, whom he did not call to testify in his own defence, what Howe and Dixon had achieved by unassisted advocateship. The upshot was that Howe immediately became a “folk hero,” and ultimately a figure of Olympian myth. His trial became the defining moment in the political history of the province. Dixon was overwhelmingly re-elected to the Manitoba legislature in the general election held four months after his acquittal. McLachlan, however, remained a working-class anti-hero, whose trial and unsuccessful appeal, in David Frank’s words, “passed on into the untapped obscurity of legal history.” Scholars of Howe have failed to acknowledge the resemblance of the McLachlan sedition trial to the Howe sedition trial. They seem unaware that seditious libel at common law is sedition not libel, and that Howe was not on trial for defamation, but for a crime against the state. The politically and socially dangerous implication for the historiography is that Howe, the petit-bourgeois “conservative reformer,” would be coloured by association with McLachlan, the working-class radical and Bolshevik pariah. Yet, at the time of his own sedition trial Howe did not consider himself, nor did his friends or enemies consider him to be conservative in any sense of the word. That Howe stood four-square in the English radical whig tradition is clear from a close, impartial reading of the stenographic report of his courtroom address in his own defence.”

“In that sense, J.B. McLachlan no less than Fred Dixon was a legatee of Joseph Howe, as well as the provider of a legacy of working-class political radicalism — and his forerunners were the radical reformers of a century earlier. Excepting only McLachlan, the study of sedition in Nova Scotia has been obfuscated by the “criminal libel” misnomer such that the seditious libel prosecutions of William Wilkie in 1820 and Joseph Howe in 1835 are not seen for what they undoubtedly were: show trials staged by the ruling class to counter the perceived threat to the established order posed by ancillary crimes against the state. Just as Howe implicitly compared himself to the English radicals of the period of extreme Tory reaction in the late eighteenth and early nineteenth centuries — many of whom were tried and convicted of seditious libel — so the comparison with Howe was advocated by McLachlan’s senior counsel, the Conservative lawyer-politician Harrington. If the radical pamphleteer William Wilkie — tried and convicted of seditious libel in 1820 after an unsuccessful self-defence conducted along the same lines as Howe’s fifteen years later — was a forerunner of Joseph Howe, then Howe was a forerunner of J.B. McLachlan, who assumes a place of honour within the century-old tradition of political protest and trials for sedition in Nova Scotia. McLachlan, writes David Frank, “was a political trial, part of a Canadian tradition we have found it all too easy to forget. These kinds of trials, such as Joseph Howe’s in 1835, had long pitted the forces of change against the forces of continuity.””

“Clearly a line of defence which did not result in a verdict of not guilty was “an ineffectual one”; however, to criticize it as incoherent, as David Frank does, is ex post facto rationalization. Just as scholars of Howe have disposed of some archetypal myths — such as that the verdict established freedom of the press — only to replace them with others, so students of McLachlan fail to recognize that one of the lessons of that case is that criminal law and criminal justice history are not necessarily combinable in the context of legal proceedings. Political trials, however significant they may be in other respects, are not necessarily significant sources of law. Frank, for example, argues that counsel for the defence in McLachlan “probably unreasonably, accepted the argument that truth was no defence in a case of seditious libel.” Harrington’s acceptance of what had long been a settled principle of the common law can hardly be considered unreasonable for a lawyer pleading in a criminal court. Moreover, Harrington’s failure to recognize that one of the lessons of Howe was that the restriction on truth as a defence “could be easily evaded in the process of clarifying the defendant’s intentions” is fully consistent with his argument on appeal that seditious libel law was unaffected by the passage of The Libel Act 1792. There the jury’s right to “find” intention as a matter of fact was explicitly affirmed. The problem with Harrington’s defence was not incoherence but error of law. The Libel Act 1792 was the very statute which enabled Howe to evade this common law restriction on defence pleading in the course of clarifying his innocent intentions.

As John Mellor correctly states, Harrington “had based his whole case on the famous Joseph Howe and his acquittal on a similar charge of seditious libel.” Harrington either did not understand or failed to elucidate the legal justification for Howe’s acquittal. He not only misunderstood the implications of The Libel Act 1792 for sedition law, but also mistook the legal heart of Howe’s defence. Harrington nevertheless believed that he could defend McLachlan in the same manner and with the same success as Howe had defended himself. Despite the fact that McLachlan was not defending himself, and that Howe had called no witnesses, there seemed to Harrington little point in putting the accused in the witness-box, to be exposed to a withering, ideologically perverse cross-examination by the Attorney-General. “It was generally believed,” according to Mellor’s hearsay: that if Harrington had arranged for defence witnesses to give evidence for McLachlan at the trial, he could quite possibly have won an acquittal, but instead, Harrington had based his whole defence on drawing an analogy between the famous Joseph Howe case, which had ended in acquittal, and the McLachlan case with its communist overtones. This is an aspect in which McLachlan and Dixon differ; Dixon was a non-socialist, while McLachlan was a revolutionary socialist who could scarcely have been permitted to speak candidly in his own defence in open court.”

Just as the legal argument from analogy failed to obtain an acquittal for McLachlan, so the argument from legal history has failed to obtain recognition of McLachlan as a case which merits judicial reconsideration. As recently as 1990, the authors of an essay on the historiography and sources for the study of Russell could claim that “[t]he legal history of the Winnipeg General Strike trials has yet to be written.” The same may be said for the legal history of working-class radicalism in Nova Scotia.”

Cahill, Barry. “Howe (1835), Dixon (1920) and McLachlan (1923): Comparative perspectives on the legal history of sedition.” University of New Brunswick Law Journal, vol. 45, 1996, journals.lib.unb.ca/index.php/unblj/article/view/29601

“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 regards to “before there were any movements of political protest in Nova Scotia” above, the author of this paper neglects the Hoffman rebellion or the American revolution, of which Nova Scotia played an admittedly minor part but not without battle (at Cumberland), and not without legal consequence. Perhaps the author stood in the same position as me, kept purposefully ignorant of the history here, taking in the obfuscations and constant crowned revisionism as fact without any reason to think what’s presented as fact is so slanted. I was thankful to find a few examples of Whiggery and Spirit. The 1776-77 trials for treason followed other skirmishes and expositions of passion.]

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

“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