The Story of the Upper Canadian Rebellion Part 8

While those suits were in progress, Forsyth, finding that public opinion, if not in his favour, was at least hostile to the Lieutenant-Governor, sent in a pet.i.tion to the a.s.sembly, setting forth the circ.u.mstances, and praying for redress. This was during the session of 1828. The a.s.sembly entertained the pet.i.tion, and appointed a Committee of Inquiry. The Committee proceeded to inquire accordingly.

While their investigations were in progress they resolved to examine two of the Government officials, who, as there was reason to believe, could throw light upon Sir Peregrine's reasons for such arbitrary conduct as that of which he had been guilty. The officials whose evidence it was thought desirable to obtain were Colonels Coffin and Givins, both of whom were heads of departments. The former occupied the position of Adjutant-General of Militia for Upper Canada; the latter was Superintendent of Indian Affairs. Both of these gentlemen were summoned to attend before the Committee at a specified time. In this there was nothing strange or unusual. It was a matter of frequent occurrence for officials of the Government, high and low, to be summoned before Parliamentary committees while the Legislature was in session; and there was no question as to the right of such committees to require such attendance. In this instance, however, the persons summoned were not permitted to obey the behests of the Committee, and in the attendant circ.u.mstances there were pretty plain indications of crookedness and collusion between the Crown officers and Sir Peregrine Maitland. Each of the two officers concerned, immediately upon receiving his summons, caused the fact to be communicated to the Lieutenant-Governor, and each wrote a shuffling letter to the Chairman of the Committee. Later in the day the Lieutenant-Governor positively declined to permit the attendance of the persons summoned, a.s.signing as a reason that he had not been made acquainted with the facts as to which it was desired to interrogate them. Now, when one considers all the facts and circ.u.mstances of the case, one is driven to the conclusion that Colonels Coffin and Givins were in possession of certain information which the Executive, or at any rate the Lieutenant-Governor, had a strong interest in keeping secret.

Why else were they forbidden to attend? The reason a.s.signed was certainly not a sufficient one. In the first place it was not founded upon fact. That the Committee had been appointed for the specific purpose of investigating the circ.u.mstances connected with the Niagara Falls outrage was matter of common notoriety. When the two Government officers were summoned to give evidence before that Committee there could be no doubt that the intention was to examine them touching their knowledge of the matter in hand.[94] Some years before this time, when the Compact were all-powerful in the a.s.sembly, as well as in the Upper House, a custom had been introduced of notifying the Lieutenant-Governor whenever it was proposed to examine any of the Government officials as witnesses before a Parliamentary committee. It had been customary to specify, in the address of notification, the subject on which it was intended to take evidence. This, however, had been a mere matter of courtesy and conventionality, upon which n.o.body had any right to insist; and the practice had not been uniform or consistent, various instances having occurred where Crown officers had been summoned and examined as witnesses without any such notification having been given. Upon such a flimsy pretext, however, did Sir Peregrine Maitland base his refusal to permit the two witnesses to attend for examination in the Forsyth case.

The Chairman of the Committee duly reported to the a.s.sembly the non-attendance of the witnesses, and that body determined that its authority should not thus be defied and set at naught with impunity. The chief offender, the Lieutenant-Governor--or the Commander of the Forces, if he was to be considered as acting in that capacity--was of course beyond reach, but proceedings were forthwith inst.i.tuted against the recalcitrant witnesses. Warrants were issued against them by the Speaker, in order that they might be brought up before the House, in custody of the Sergeant-at-Arms, to answer for their contempt. Acting under legal advice, they declined to submit to such authority unless compelled to do so by force; and they boldly threatened that in case of force being resorted to they would prosecute the Speaker. It is to be presumed that the warrants would in any case have been acted upon, but this impudent threat left the a.s.sembly no alternative. If Government officers, paid out of the public purse, were to be allowed to defy that branch of the Legislature which alone represented the popular voice--if they were to be permitted to treat its mandates with contempt, and to threaten its representative with ulterior consequences in the event of those mandates being enforced--then, indeed, liberty and equal rights were at a low ebb in Upper Canada. The warrants were promptly executed, the house in which the two officials had ensconced themselves being forcibly entered for the purpose. Being brought to the bar of the House, and charged with their contempt, they sought to vindicate themselves by pleading the action of the Lieutenant-Governor in refusing to sanction their attendance. The House then adopted a resolution under which they were handed over to the custody of the Sheriff, and committed to the common jail of the Home District. They formally notified the Lieutenant-Governor, through his private secretary, of the calamity which had come upon them through obedience to his behests, and requested that the advice and a.s.sistance of the Crown officers--that is to say, of the Attorney-General and Solicitor-General--might be vouchsafed to them.

They however remained in confinement only three days, for the Lieutenant-Governor, in accordance with an intimation previously given, prorogued the Legislature on the 25th of March--they had been committed on the 22nd--and the power of the a.s.sembly to commit did not extend beyond the time when it was actually in session.

Colonels Coffin and Givins carried out their threat, and sued the Speaker for damages for false imprisonment. The right of the a.s.sembly to commit for contempt was however a matter too well established, and was confirmed by the Court of King's Bench in another cause then pending. So that the Adjutant-General of Militia and the Superintendent of Indian Affairs, in addition to their respective bills of costs, had their three days' imprisonment as a reward for their fealty to Sir Peregrine Maitland, and for their disloyalty to the Canadian people.

Sir Peregrine appears to have felt a little dubious as to how his proceedings would be regarded at the Home Office. It was quite certain that the Colonial Secretary would hear of the affair, but that dignitary's approval was open to question. It would at all events be well that the official mind should receive its first impression on the subject from Sir Peregrine himself, who accordingly lost no time in sending over his own version of the transaction. His despatch, which bears internal evidence of having been written or revised by Attorney-General Robinson, is dated the 29th of March--the fourth day after the prorogation. Under the pretext of asking for advice as to how he should act in the future in case of any of the officials being summoned before Parliamentary committees without any notification having been made to himself, he recounts the story of the Niagara Falls outrage. His narrative, it is almost needless to say, is from first to last garbled and one-sided. Forsyth is referred to therein as "a person notoriously of indifferent character;" and the a.s.sembly and its committees are maligned in language highly improper to be employed in a confidential communication from the Lieutenant-Governor of a colony to his superiors at home.[95] The Colonial Secretary, however, was shrewd enough to penetrate the veil of misrepresentation in which the despatch was enveloped, and to arrive at a pretty just appreciation of the merits of the case. He officially expressed his opinion that there had been adequate grounds for inquiry by the a.s.sembly. "I cannot but consider,"

he wrote, "that Sir Peregrine Maitland would have exercised a sounder discretion had he permitted the officers to appear before the a.s.sembly; and I regret that he did not accomplish the object he had in view in preventing Forsyth's encroachments by means of the civil power, which is said to have been at hand, rather than by calling in military aid." This despatch, however, was written, not to Sir Peregrine Maitland himself, but to his successor, Sir John Colborne. The Forsyth case, coming, as it did, in the wake of other ill-advised proceedings on the part of Sir Peregrine, determined the Home Government to withdraw him from Upper Canada, where it was quite evident that his usefulness--if he had ever had any--was gone. He was transferred to Nova Scotia, whither it is not necessary that this narrative should follow him.

With respect to Forsyth, it may he added that, being unable to obtain any recompense for the Phillpotts invasion, and being hara.s.sed by protracted litigation, he sold his property at Niagara Falls at a price considerably below its value, and removed from the spot. It cannot be said that he deserved much sympathy, for he had brought his losses on himself by his own selfishness. He took advantage of the situation to pose in the character of a martyr to Executive tyranny, and he succeeded in deceiving many of his contemporaries into the belief that he was a much injured man. The historical interest, however, centres not in him, but in the consequences arising out of the employment of soldiers to do the Sheriff's work in a time of profound peace, and without any initiatory civil process having been issued. The popular excitement consequent on the outrage encouraged Forsyth to pet.i.tion the a.s.sembly.

The pet.i.tion led to the appointment of the Committee of Inquiry, which in its turn led to the summoning of witnesses and the conflict between the a.s.sembly and the Lieutenant-Governor. The conflict led to the latter's removal, and, from that point of view, is not to be regarded in the light of an unmixed evil.

FOOTNOTES:

[90] See the letter from Chief Justice Robinson to Lieutenant-Colonel Rowan, Secretary, etc., etc., dated at York, 31st December, 1832, and appended to the Report of the Committee of the House of a.s.sembly on the Pet.i.tion of William Forsyth, dated April 1st, 1835. In one part of this letter the Chief Justice says that the laying out of the lots took place "some time between the years 1785 and 1790, and while General Haldimand administered the Government of Canada." General Haldimand did not administer the Government of Canada during any part of the time thus specified--a fact of which Chief Justice Robinson ought to have been aware. In a subsequent part of the same letter he properly gives the date as 1786.

[91] See the report, p. iv., appended to the _Seventh Report of the Grievance Committee_.

[92] The defence of these two suits would seem to have been the means of considerably augmenting the Attorney-General's already ample income.

From certain accounts sent down to the a.s.sembly it appears that a sum of _127 6s. 6-3/4d._ sterling were paid to him during the year 1834 for "expenses incurred by him in defending two suits with costs in reference to the military reserve near the Falls of Niagara."

[93] There was a very general belief throughout the Niagara District at the time that Major Leonard, who was an obedient servant to the Executive, had manipulated the lists from which the jurors in those cases were selected. The truth or falsity of the belief cannot now be p.r.o.nounced upon, the circ.u.mstances upon which it was founded being buried in oblivion.

[94] "He [Sir Peregrine Maitland] must have inferred that the Committee proposed to examine these officers respecting the employment of a military force for the ejecting of Forsyth from the land."--See Despatch from the Colonial Secretary, Sir George Murray, to Major-General Sir John Colborne, dated 20th October, 1828, appended to the Report on Forsyth's pet.i.tion.

[95] See the despatch, appended to the Report on the Forsyth Case, at end of Grievance Committee's Report. The Colonial Secretary's despatch quoted in the text will be found appended to the same Report.

CHAPTER VIII.

THE "AMOVAL" OF MR. JUSTICE WILLIS.

The Forsyth embroilment extended over a long period, and from time to time during several years it continued, at longer or shorter intervals, to thrust itself upon public attention. Meanwhile it was not the only instance of abuse of power on the part of the Executive to which the people of Upper Canada were constrained to submit. Several other notable contemporaneous examples shared with it in the unenviable work of widening the breach between the Government and the people, and in destroying popular confidence in the impartial administration of justice. It is a rather singular fact that of all the many high-handed measures resorted to during the existence of the Ninth Parliament, the one which aroused the greatest indignation was perhaps the least blameworthy of them all. It has been the fashion with writers who have dealt with this period of our history to represent the amoval of Justice Willis as being upon the whole the most glaring iniquity of the time.

This view is not borne out by the facts. In the Willis affair Sir Peregrine Maitland had recourse to the espionage system, and certainly went to the utmost verge of his authority, but he cannot be said to have run violently in the teeth of precedent and good sense, as was done, for instance, in the Forsyth case. Nor can it be said that he acted with despotic rashness or precipitation. His decade of misrule in Upper Canada was characterized by many cruel, tyrannical and shameful deeds: deeds which stare out from the pages of the past with lurid distinctness. He has enough to answer for at the bar of history; and it is quite unnecessary to load the formidable indictment against him with surplusage or dubious matter. A careful and dispa.s.sionate examination of all the circ.u.mstances in the Willis case must convince the inquirer that the faults were not all on one side, and that the Judge himself is bound to at least share with Sir Peregrine the responsibility for the bitterness arising out of the "amoval."

John Walpole Willis, whose name was destined to win considerable celebrity in the judicial annals of this Province; was a lawyer of good standing at the English Chancery bar. He came of a respectable county family, but had no hereditary expectations, and from his earliest youth had applied himself to study with a zeal begotten of the conviction that he would be compelled to depend upon his own exertions for a livelihood.

He devoted himself with a.s.siduity to studying the literature pertaining to the equity branch of the law. By the time he reached manhood he had acquired considerable erudition, and it was predicted of him that he would make a mark in his profession. He did his utmost to justify the prediction, for he had no sooner been called to the bar than he came before the world as an author. His first publication was a work bearing upon the law of Evidence. In 1820 he issued a work on Equity Pleading; and in 1827 appeared his treatise "On the Duties and responsibilities of Trustees." These works obtained a fair share of recognition, and doubtless tended to promote his professional success. He enjoyed the reputation of being an industrious and painstaking lawyer, and a brilliant and accomplished member of society.

In 1823, when he had reached the age of thirty-one years, he was applied to for professional advice by the Earl of Strathmore. This event was destined to have important consequences. The advice led to important professional employment extending over several months, during which the clever lawyer was a frequent guest in the Earl's household, and on terms of intimate social intercourse with the family. In an unhappy hour for his future peace of mind he formed an attachment to Lady Mary Isabella Bowes Lyon Willis, one of his lordship's daughters. His attachment was reciprocated by the young lady, who was possessed of great personal attractions, and who might doubtless have looked forward to a more ambitious match; but her n.o.ble father had little to offer in the shape of dowry, and did not oppose her wishes. The marriage took place at Marylebone Church, in August, 1824. The bridegroom was then thirty-two years of age, and the bride had just completed her twenty-second year.

This disparity was not sufficient to excite any remark, for Lady Mary was mature for her age, and the bridegroom had scarcely taken leave of his youth. For about three years after the marriage the pair resided with Mr. Willis's mother, at Hendon, a pleasant suburb lying to the north-west of London; he meanwhile continuing the practice of his profession in town. All these circ.u.mstances materially contributed to the shaping of the young barrister's future career.

[Sidenote: 1827.]

Mr. Willis enjoyed the social advantages which his union with a n.o.bleman's daughter was certain to confer. These advantages were fully appreciated, but they involved certain inevitable consequences, the princ.i.p.al of which was a material increase in the domestic expenditure.

As neither Lady Mary nor her husband was possessed of much property, and as the latter's income was almost entirely derived from his profession, he resolved to try for some public appointment whereby his pecuniary condition might be improved. Early in 1827 the project of establishing a Court of Equity in Upper Canada was for a short time under some sort of consideration at the Colonial Office. Through the influence of his father-in-law, Mr. Willis was mentioned as a most suitable man to undertake that important duty. His heart responded to the idea. He felt that he was well fitted for such a responsibility, and that a congenial sphere of usefulness would thus be presented to him. His vanity also seems to have been flattered by the prospect of being raised to the bench--even the colonial bench--at so early an age. Visions of social and intellectual supremacy among the magnates of Upper Canada doubtless presented themselves in alluring shapes before his mind. He had no difficulty in obtaining a promise that in the event of the contemplated appointment being made it should be offered to him. The project, however, was still in embryo, and--as the event proved--was not fully carried out until about ten years later. It was meanwhile desirable that a puisne judge of the Court of King's Bench for Upper Canada should be appointed without delay, and that position was offered to Mr. Willis. It was at the same time represented to him that his acceptance would in no wise interfere with the scheme of the establishment of a Court of Chancery, and that he would be none the less fitted, to carry out such a scheme from his having resided for some time in the Province, and from his having become to some extent familiar with local laws and inst.i.tutions. After mature reflection he accepted the offer, and set out for Canada towards the end of the summer, accompanied by his wife, mother, sister and infant son.

His marriage had not proved in all respects a felicitous one. Lady Mary was imbued with patrician ideas, and bore herself towards her husband's family with considerable hauteur. She was very particular in exacting certain observances in which she considered herself ent.i.tled. There were doubtless faults on both sides. Mrs. and Miss Willis took umbrage at the patronizing airs of Lady Mary, who, in her turn, complained that she was made a cipher in her own house. There were also petty jealousies on the part of Lady Mary, which led to disputes between herself and her husband. Altogether the domestic establishment at Hendon was not a harmonious one, but the means of the family were insufficient to admit of the keeping up of two separate households. The true remedy for such a state of things lay in the exercise of a spirit of mutual forbearance--an exercise to which Lady Mary, at least, seems to have been little accustomed. Under such ominous auspices was the Willis household transferred from Hendon to Upper Canada.

The Willises reached the Upper Province on the 17th of September, and on the following day the new judge proceeded to Stamford Cottage, the summer residence of the Lieutenant-Governor, in the Niagara District.

Having presented the royal warrant for his appointment, together with certain other doc.u.ments, he was cordially received by Sir Peregrine. He dined and spent the evening at the Cottage. In the course of conversation he referred to the project of establishing a Court of Equity--which by this time was no secret--and was surprised to find that the theme was distasteful to his host, who, in a tone not to be misunderstood, remarked: "Sir, you have not got your Court of Equity yet." "The words," wrote Mr. Willis,[96] "made some impression at the time, and subsequent events tended to throw further light upon their meaning."

Upon his arrival at York, on the 20th, Mr. Willis was welcomed with apparent cordiality by the judiciary, the bar, and society generally.

The leaders of local fashion vied with each other in their attentions to the ladies of the family, more especially to Lady Mary, who was almost overwhelmed with civilities. The new judge was sworn in on the 11th of October. He entered with avidity upon the duties of his office, and also made himself conspicuous in society, where he was from the first regarded in the light of a decided acquisition. He entered with keen zest into plans for party-giving and entertaining, and evidently derived heartfelt pleasure from receiving and dispensing courteous hospitalities. He attended several public meetings which had been called for charitable and other purposes, at all of which he spoke with what was considered a somewhat perfervid eloquence. In a word, he not only took the rank to which he was ent.i.tled by virtue of his office, but jumped at once into the position of a leader of society and social movements. His name was on everybody's lips. Persons to the manner born, who had been accustomed to fill the foremost places in the public eye, found themselves, for the time, almost superseded and ignored. Judge Willis duly appreciated the homage which was rendered to him, and exhibited himself to society in his brightest and most amiable colours.

To a few great personages, however, it seemed as if the new-comer carried himself with wonderful _sang-froid_, and contemplated himself and his position with too much complacency. To them it appeared as if he regarded all the eager admiration which was lavished upon him as being nothing more than his transcendent qualifications ent.i.tled him to look for at the hands of the little world of York. He seemed, they thought, to accept it all as his just due. And the belief was not unreasonable on their part, for the Judge seems to have been in a measure carried off his feet by the attentions paid to him on every hand. His position was one calling for the exercise of calm judgment and discretion. It was not surprising that leading members of the bench and bar, who had long served the Government with zeal and acceptance, should entertain some jealousy at the appointment of an outsider to a place of high honour and emolument. Attorney-General Robinson, for instance, had filled his responsible office for many years, and the Crown had certainly no reason to complain that he had favoured liberty at the expense of prerogative.

Hagerman and Boulton, too, had for years lent themselves to the purposes of the Executive. It was not singular that these persons should feel as though their own claims to preferment had been pa.s.sed over in favour of Judge Willis, a stranger to Canada, her inst.i.tutions and her polity. Nor was it wonderful that their deportment towards the stranger should, in spite of themselves, be influenced by the feeling. Judge Willie was not long in discovering that some sentiment of this sort was in the air, but he does not appear to have made sufficient allowance for it, and manifested a disposition to carry things with a high hand. He entertained a poor opinion of the Attorney-General's professional attainments, and did not sufficiently conceal this opinion. He was at first disposed to think highly of Judge Sherwood's abilities, but erelong came to the conclusion that he had greatly overestimated them,[97] and plainly showed, by his conduct, that he attached little weight to his brother judge's decisions. This course was the very opposite to what would have been adopted by a discreet and really able man. Such a man would have made due allowance for jealousies which, under the circ.u.mstances, were almost inevitable. Such a man would have adopted a policy of friendly conciliation. Such a man would have refrained from making himself specially conspicuous, at least until he had been some time settled in his new career, and had become accustomed to the novel atmosphere. Judge Willis's conduct was the very reverse of all this. In his intercourse with his brother judges--one of whom, it must be remembered, was Chief Justice--he adopted a tone of superiority, and even, to some extent, of dictation. He was of course not to be blamed for dissenting from their opinions--which he very frequently did--provided that he was honest in his dissent; but he acted very cavalierly on such occasions, and in p.r.o.nouncing his own judgments seldom thought it necessary to make any reference to the decisions of his brethren on the bench. It was impossible for the latter to ignore the fact that he despised, or affected to despise their legal attainments; and their recognition of this necessarily gave rise to irritation and anger on their part. They felt his conduct to be all the more disrespectful to them in consequence of his admitted want of familiarity with Common Law, his own reading and practice having been almost exclusively confined to the Equity branch of the profession.

In the very first judgment ever rendered by him, he gave utterance to sentiments which, to put the matter mildly, were very much out of place.

The case was one brought by George Rolph, of Dundas, against T. G.

Simons and others, for a gross outrage which had been perpetrated on the plaintiff, who was a brother of the Attorney-General's great political rival. The outrage had arisen out of private complications, and no political question arose in the course of the trial. In concluding his judgment Mr. Willis took occasion to remark that he had formed his opinion of the case on its intrinsic merits, unbiased by any political considerations. He added that he was totally devoid of party feelings, and that it would ever be his most earnest desire to render to every one impartial justice. It goes without saying that these are very proper sentiments on the part of an occupant of the judicial bench. Such principles were especially required in Upper Canada, where there had long been much judicial partiality and frequent miscarriages of justice by reason of political differences. But a judge should at least a.s.sume that his integrity is taken for granted, and should deem it beneath his dignity to attempt any vindication of his rect.i.tude while an occupant of the bench. Moreover, there were no circ.u.mstances to call forth such expressions as were used by Judge Willis. No hint of any partiality had ever been heard against him. There had been no opportunity for any display of partiality by him, for he then took his seat on the bench for the first time. Saith the proverb: "He who makes unnecessary excuses accuses himself." In this case the Judge certainly indulged in wholly unnecessary self-vindication. And there were reasons why any such vindication by him was especially indelicate. The Radical newspapers had heralded his arrival as the dawn of a new era, when judicial corruption would cease in the land. It is pretty evident that he had been flattered by the eulogy, and that he now went out of his way to administer a covert reproof to his colleagues on the bench. His remarks were undoubtedly taken in that sense, and tacitly resented by them. It may have been that they were all the more ready to take the remarks as applying to themselves from their consciousness of past shortcomings; but it was not from a brother on the bench--one, too, who had been only a few weeks in the country--that they should have been subjected to reproof.

To the feelings of his colleagues, however, Mr. Willis paid little consideration. His heart was specially set upon the establishment of a court of equitable jurisdiction, and to this end he bent much of his energy. He forced the matter upon the attention of the Attorney-General, who, he found, differed from him in respect of certain important details. He also prepared and submitted a scheme to the Lieutenant-Governor. He found great difficulty in inducing any member of the Government to discuss the matter with him. He was informed that an Act of the Provincial Legislature was considered necessary to the creation of such a court as the one contemplated by him. In this opinion he did not coincide, but by way of expediting matters he bestirred himself with a view to bringing about the necessary legislation. After a Bill, originally prepared by his own hand, had been introduced into the a.s.sembly, he attended to hear the debates, and fraternized with Rolph, Bidwell, and other members of the Opposition--a circ.u.mstance which was afterwards very strongly urged against him at the Colonial Office. The Bill did not run smoothly, and was denuded of certain clauses which he deemed to be essential to the successful carrying out of the scheme. He vainly endeavoured to bring the Attorney-General round to his view of the matter. Mr. Robinson had too long been supreme in all legal affairs to submit to any dictation, more especially from one towards whom he bore no good will. Judge Willis found himself opposed and thwarted at every turn; and he erelong discovered that the Government were averse to the scheme, although the aversion was not directly avowed. He then recalled the Lieutenant-Governor's remark on the subject made to him some months before at Stamford Cottage. Certain dubious expressions which had from time to time fallen from the lips of the Attorney-General, the Solicitor-General, the Judges, and other prominent officials also recurred to his mind. As for Attorney-General Robinson, "I at length discovered," wrote Judge Willis, "that any proposition that did not originate with himself was not generally attended with his approbation."[98]

A despatch from the Colonial Secretary to the Lieutenant-Governor was promulgated about this time, from which it appeared that the project of establishing a Court of equitable jurisdiction was in abeyance, or had, for the time, been abandoned. Judge Willis was greatly disappointed at this abandonment, which, in conversation, he openly ascribed to the influence of Sir James Scarlett, the English Attorney-General, with whom he had once had some unpleasantness while on circuit. But it also became known about the same time that Chief Justice Campbell was about to retire from the bench, and that his office would accordingly soon be vacant. Judge Willis lost no time in making application for the post.

Neither did Attorney-General Robinson, whose application was backed by the entire influence of the Upper Canadian Executive. Here was a fresh ground of rivalry, whereby the unpleasant relations between these two officials were intensified. It soon became impossible for the new Judge and the Attorney General to come into contact without feelings and expressions indicative of personal hostility. The hollow friendship which had at first seemed to subsist between them was cast to the winds, and all social intercourse between them was at an end. Any proposition emanating from Judge Willis was systematically opposed by the Attorney-General. The Judge in his turn availed himself of several opportunities of showing how little weight he attached to the Attorney-General's opinions. Worse still, he brought upon himself the lasting indignation of the Lieutenant-Governor. It would perhaps be more correct to say that his wife brought this calamity upon him, for the origin of the trouble was a hot dispute between Lady Mary Willis and Lady Sarah Maitland on a question of rank and precedence. In this quarrel it is quite clear that Lady Mary was in the wrong, but the whole affair was utterly contemptible on both sides. The ladies dragged their respective liege-lords into the dispute, and each of the latter espoused the side of his helpmeet. Sir Peregrine necessarily got the better of his adversary, whom he never forgave. It is impossible to say how far this unseemly women's wrangle contributed to the humiliation which Judge Willis was subsequently compelled to endure, but it is pretty clear that from that time forward Sir Peregrine was bent upon getting his adversary removed from his position. Unhappily the Judge, by his want of discretion, made this resolution comparatively easy of accomplishment.

He const.i.tuted himself a sort of general censor of judicial and official shortcomings, and from his seat on the bench gave utterance to petulant and unbecoming strictures on various transactions with which he had no need to concern himself.

[Sidenote: 1828.]

At the York a.s.sizes held in April, 1828, Judge Willis came into such serious public collision with the Attorney-General that the affair was bruited abroad, and made considerable noise throughout the Province. On Thursday, the 10th of the month, Francis Collins, editor of the _Freeman_, was brought up on certain indictments for libel preferred against him by Attorney-General Robinson, under circ.u.mstances which will be detailed in a subsequent chapter. The bench was occupied by Mr.

Justice Sherwood. The Clerk was just about to proceed to arraign the accused, when a postponement was asked for on the latter's behalf. The application was granted, and there the matter ended for the day. Next morning--Friday, the 11th--the bench was occupied by Justice Willis, who then for the first time in his life presided at an a.s.size. He had no sooner taken his seat than Collins rose at the bar. "May it please your Lordship," said he, "I have a motion or two to make in Court, if I, not being a lawyer, am in order in so doing."

"Certainly," replied the Judge; "step forward, that the Court may hear you."

Collins then stepped forward, and addressed the Court in a speech which had evidently been prepared for the occasion.[99] "My Lord," said he, "I am the humble conductor of a public press in this town. I come forward to accuse His Majesty's Attorney-General of vindictiveness and foul partiality in the discharge of his duty as prosecuting officer for the Crown. He has sent his nephews and apprentices as spies into my office in order to hunt up imaginary offences. He has preferred bills of indictment against me on supposition of libel, and I have been dragged from my business by a common constable, and obliged to give bail in this Court, while he, the Attorney-General, has allowed the most infamous crimes to pa.s.s in review before him, without taking any notice whatever of them." And so on, with much more to the same purport.

The speaker was interrupted by the Attorney-General, who had been conferring with a member of the bar in an adjoining room, but who had been specially summoned into Court by his clerk, Henry Sherwood, who had informed him that Collins was making a long harangue to the Judge.

Observing that the Judge showed no disposition to put a stop to the proceedings, Mr. Robinson requested to be informed what was the defendant's object in addressing the Court, and whether he had made any motion. "If Mr. Collins is allowed to proceed," replied Judge Willis, "I dare say his object will appear." Collins accordingly proceeded:--

"My Lord, while I have been dragged into this Court, on the mere suspicion of libel, by His Majesty's Attorney-General, I hold in my hand the printed confession of His Majesty's Solicitor-General, Henry John Boulton Esquire, of a crime that the law of England calls murder, committed ten or eleven years ago.[100] Yet no indictment has been brought against him, and this confession is attested by James Fitz Gibbon Esquire, a magistrate of this District, and by the Sheriff of this Court. I hold also in my hand the printed history of an outrage of the grossest character, where a number of young official gentlemen in this town a.s.sembled together and committed a noonday burglary, by breaking into the private house of William Lyon Mackenzie, and destroying his property. This atrocious outrage, please your Lordship, was proved on the floor of this Court, in the presence of His Majesty's Attorney-General. The perpetrators were identified and sworn to, yet no indictment has ever been brought against them, while the Attorney-General is busying himself in sending spies and informers into my printing office to bring me up for imaginary offences."

The Attorney-General could hardly be expected to sit quietly under such accusations as these, made in open Court, and listened to by the bench without any expression of disapprobation. He rose in some heat, and remarked that he hoped the Court would not allow the public business to be thus interrupted. "The defendant," said he, "is not upon his trial, nor has he ever been arraigned. He seems merely to be indulging himself in an attack upon me as Attorney-General--an attack which could not have any bearing upon his own case, even if it were now before a jury; but which at present is nothing but a most improper interruption of the business of the Court, by an harangue intended to prejudice the public mind before he shall be put upon his trial. As to the matters of which he has spoken, I am not to be called to account by him, or by any other defendant, for the discharge of my official duties with respect to other parties not now before the Court. I am at all times ready to account for my proceedings as Attorney-General to the Government for whom I act, and to whom I am responsible; but I trust that the Court will not suffer a person whom I merely know as defendant upon bills for libels of the most disgraceful kind, and whose arraignment upon these charges has been postponed, as an indulgence, at his own request--I trust that such a person will not be allowed to address the Court in this irregular manner, for the mere object of calumniating me, whose duty it is to conduct the prosecutions against him."

A brief silence followed these words, after which Collins resumed, and was allowed to proceed without further interruption.

"The object of my present motion, then, my Lord, is to compel the Attorney-General to do that duty which he has so long neglected when his own friends were concerned; and as I think his present proceedings against me are both partial and unjust, I shall press the criminal prosecution of his friends, Henry John Boulton Esquire, for murder, and Samuel P. Jarvis and others for riot. In the latter case, please your Lordship, the rioters were sued in a civil action, and damages to a considerable amount recovered from them; yet I feel it my duty to press the criminal prosecution, because James Fitz Gibbon Esquire, a magistrate of this District, begged the amount of the fine from door to door in this town, and the rioters have so far gone wholly unpunished.

All I ask, please your Lordship, is justice and impartiality, and from your Lordship's character I doubt not I shall receive them at your hands."

After a moment's consideration, during which silence reigned supreme in the Court-room, Judge Willis remarked:--"If the Attorney-General has acted as you say, he has very much neglected his duty. Go you before the Grand Jury, and if you meet with any obstruction or difficulty I will see that the Attorney-General affords you every facility."

This was, beyond doubt, very unbecoming language to be used by a Judge under such circ.u.mstances. It must be understood that Judge Willis had not properly before him any facts upon which to base his opinion as to the Attorney-General's having neglected his duty. That that official had much to answer for; that his practice had been one-sided and inconsistent; that much of his life had been spent in endeavouring to smother public opinion and to maintain the supremacy of a selfish and corrupt caste--this must be conceded at the bar of history. But no such allegations were before Judge Willis in an official form, and he had no right to a.s.sume anything against the Attorney-General in the absence of the most irrefragable evidence. Instead of evidence, he had merely heard the _ex parte_ statements of an alleged libeller. This was the legal aspect of the matter, and it is impossible to avoid the conclusion that the Judge permitted himself to be influenced, by his personal dislike to Attorney-General Robinson.

The Attorney-General sat for a moment as if thunderstruck. He had so long been accustomed to having his own way in Courts of Justice, and to seeing his opinions deferred to by the bench, that he could scarcely credit what was pa.s.sing before his eyes. That a Judge should dare to censure him in this irregular way, before the bar and the public, was almost beyond belief. A contemporary account says that he turned to "a rich cream colour."[101] He was at all events labouring under suppressed rage as he deliberately arose to address the Court. He denied that he had neglected his duty in not preferring indictments against persons in cases where no formal complaint had been laid, and he utterly repudiated the idea that his office imposed upon him the _role_ of a thief-catcher.

"It is not my business," said he, "to play the part of a detective, or to hunt about the country for evidence in support of voluntary prosecutions. I have now discharged the duties of a Crown officer for nearly thirteen years, and this is the first time that a failure in my duty has been imputed to me. I have always conceived it to be my duty to take official cognizance of offences against the State. As to other cases, I have been accustomed to proceed only upon informations and complaints placed in my hands by justices of the peace, and upon presentments of Grand Juries. In cases of injuries to individuals and their properties, such as a.s.saults and riots, where a double remedy is afforded by action and indictment, I have not been accustomed to set the law in operation on my own motion."