The Story of the Upper Canadian Rebellion Part 9

"That," interrupted Judge Willis, "merely proves that your practice has been uniformly wrong, and I take leave to remark that you have neglected your duty. Why are you placed here, as prosecuting officer? To prevent the violation of the public peace, or, when it has been violated, to punish the offenders, whoever they may be, or whatever may be your private feelings with respect to them. The moment a violation of the public peace was proved before you, as in the case mentioned by Mr.

Collins, it was your duty to proceed against the offenders. Do you not consider that the Solicitor-General and yourself have the exclusive right to conduct all criminal prosecutions; or do you admit them to be open to the bar in general, as in England?"

The Attorney-General's feelings were by this time worked up to a tremendous pitch of excitement. To think that a Judge--a junior Judge, who had been only a few months in the country--should presume to lecture him in this manner, and to instruct him in his duties as though he were a petty juryman! "My Lord," he burst forth, in a tone of hot anger, "I know my duty as well as any Judge on the bench. I have always acted in the way I have indicated, in which respect I have followed the practice of all my predecessors in this Province; and I shall continue to act in the same manner as long as I am prosecuting officer for the Crown."

"Then, Sir," retorted Judge Willis, "if you know your duty you have wilfully neglected it; and as you say you will continue to act as you have done hitherto, I shall feel it to be my duty--holding, as I do, His Majesty's commission on this bench--to make a representation of your conduct to His Majesty's Government."

This far from edifying scene was without precedent in the annals of Upper Canadian courts of justice, and was for some days the talk of the town, more especially among the members of the legal profession. The bar generally sided with the Attorney-General, and were loud in their aspersions upon Judge Willis. Some of the leading members, however, among whom were Rolph, Bidwell and the two Baldwins, took a different view, so far, at least, as the legal aspect of the dispute was concerned. As for public opinion generally, it was largely in favour of Judge Willis. On Monday, the 14th, before the public pulse had had time to cool, there was a scarcely less notable interchange of asperities between the same personages. The Attorney-General, in a criminal case in which he was officially concerned, took occasion to reiterate, in effect, the views to which he had given expression on the previous Thursday as to the duties of a Crown prosecutor. When he had finished his remarks Judge Willis expressed himself to the same effect as before.

"The practice in this country," said the Judge, "as stated by the Attorney-General, does not agree with my notions as to the duty of that officer, and I have laid a statement of the question before His Majesty's Government here for the purpose of having it transmitted to England, where it will be decided how far the Attorney-General is right in expressing his sentiments as he has done." Mr. Robinson hereupon remarked that he was Attorney-General to His Majesty, and not to Judge Willis, and that he would act as he believed to be right, even though he should differ in opinion from his Lordship.

JUSTICE WILLIS.--Mr. Attorney-General, I am one of His Majesty's Judges in this Province. As such, it is my place to state to the Crown officers what their duties are, and it is for them to perform those duties according to direction. If the interests of the Crown had not been concerned I would not have permitted any discussion on the question. But I am sure His Majesty's Government will protect me from insult in the exercise of my judicial functions, and in stating to any public officer what I conceive to be his duties.

ATTORNEY-GENERAL ROBINSON.--And will also protect His Majesty's officers in the execution of their duty.

JUSTICE WILLIS.--Mr. Attorney-General, I beg that you will not reply to the bench in that manner.

The unseemliness of thus discussing, in open Court, how far the Attorney-General had proved to be an effective public servant, must be apparent to everybody. And it must be admitted that the discussion was provoked by Justice Willis, who had made something very like an attack upon the Attorney-General--an attack based upon the unsworn statements of an indicted libeller. He had moreover permitted Collins to go a most unwarrantable length in his onslaught upon the Crown prosecutor, more especially as no affidavits had been produced in support of the motion.

A layman who comes before the Courts _inops consilii_ is allowed more lat.i.tude in the conduct of his case than is generally conceded to a counsel whose professional business it is to plead at the bar; but the lat.i.tude permitted in the case under consideration was beyond all legitimate bounds. The Judge's dislike to the Attorney-General seems to have predisposed him to believe that all Collins's allegations were true. In reality they were exaggerated presentations of notorious facts.

That they were largely founded upon facts Judge Willis probably knew from common hearsay. But while sitting on the bench he had nothing to do with common hearsay. _A fortiori_, he was not justified, upon the mere a.s.sumption of a hypothetical case,[102] in admonishing the Attorney-General in the presence of his accuser, and in humiliating him in the presence of the bar of which he was the rightful head. An English judge would be considered as departing widely beyond the sphere of his duty if he were thus openly to arraign the conduct of the Attorney-General, especially in a matter clearly lying, as in the case under consideration, within that officer's discretion. English judges, on the contrary, are much more likely to interpose on behalf of the officers of the Crown, and to prevent their acts and motives from being called in question in open Court by persons against whom proceedings have been inst.i.tuted by them. Judge Willis seems to have been wrong in his law, wrong in his etiquette, wrong in his temper, and wrong in his construction of judicial amenities.

Henceforth the Judge's "amoval" was only a matter of time, for the entire influence of the Executive, direct and indirect, was arrayed against him. From the Lieutenant-Governor down to the most insignificant clerk in the departments there arose a howl of indignation against the man who had dared to set up his wife in opposition to Lady Sarah Maitland; who had dissented from the judgments of Chief Justice Campbell and Mr. Sherwood, and sneered at their legal ac.u.men; who consorted with the leading members of the Opposition; who had even gone the inconceivable length of berating Attorney-General Robinson for neglecting his duty. Such a man was not to be tolerated. He must surely be a Radical, who had got himself sent over to this colony in order that he might stir up dissatisfaction among the people. To go over all the interminable squabbles which took place between Judge Willis, on the one hand, and the various judicial and official dignitaries on the other, would be alike wearisome and profitless. Judge Willis availed himself of every opportunity which presented itself for officially and publicly animadverting upon the conduct of those who were opposed to him. He added to his enormities by announcing, through the newspapers, that he was preparing for publication a work on Upper Canadian jurisprudence, and it appeared that the t.i.tle-page was to bear the deprecatory motto _Meliora sperans_.[103] _Meliora sperans_, indeed! What manner of personage was this outsider, who arrogated to himself the responsibility of ameliorating the rigours of Upper Canadian laws?[104] It was not long before an opposition announcement appeared, being an exact counterpart of the other, except that the motto was _Deteriora timens_. The authorship of the latter, whether rightly or wrongly, was very generally attributed to Attorney-General Robinson. Judge Willis's announcement gave great offence to the official guardians of the law, from the highest to the lowest. The motto, which in reality had been adopted by him prior to his coming to Canada, was believed to have been specially a.s.sumed for the occasion, and was regarded as a covert sneer at existing inst.i.tutions in the Province. As a consequence, it was taken as additional evidence of disrespect. Owing to the Judge's "amoval" the projected treatise was never issued, though several chapters of it had actually been written. A small portion of it was incorporated in a work published by the author in England twenty-two years afterwards.[105]

In an elaborately-worded despatch to the Colonial Secretary, dated the 6th of June, 1828, Sir Peregrine Maitland called the attention of that official to Judge Willis's announcement and the accompanying motto, which he declared to be, in his opinion, neither discreet nor delicate, as emanating from a Judge upon the bench, who had been but a few months in the Province. The laws of Upper Canada, in Sir Peregrine's estimation, were highly satisfactory, and needed nothing so much as to be let alone. "I have been ten years in this government," he wrote, "and as I have never received any representation against the laws, or the manner in which they have been administered, I must conclude that the people are content with both." Content with laws which prescribed capital punishment for the killing of a cow! Content with laws which had been conceived in an iron age, and under a state of society which was now happily pa.s.sing away! Content with the laws! When a majority of the population, through their representatives in the a.s.sembly, had for years been using their utmost endeavours to procure the repeal of the Sedition Act of 1804! When a Select Committee of the British House of Commons had directed the attention of Government to this mediaevally-conceived statute, and had expressly recommended its repeal! Content with the manner in which the laws had been administered, when the trial of Robert Gourlay was yet fresh in the public memory! When a score of almost equally vile but less conspicuous perversions of justice were matters of yesterday! When no obscure litigant could sue a member of the Family Compact with any a.s.surance of obtaining his rights! When the Reform newspapers had for years been filled to overflowing with complaints about the imperfect administration of justice! When a very strongly-worded complaint of neglect in the administration of justice had only a few weeks before been made in open court to Judge Willis when he first took his seat in a Court of a.s.size! When a large proportion of the population had ceased to have any confidence in the integrity of the judiciary! When this want of confidence was shared by several leaders of the Provincial bar, who certainly had exceptional opportunities for forming a correct opinion on the subject! The time was not far distant when one of the most eminent and successful lawyers in the country was to abandon his profession, owing to this very want of confidence. Truly, a wonderful manifestation of content with the laws and the manner in which they were administered. Sir Peregrine thought and acted as other opponents of reform have acted from time immemorial. He refused to believe in the existence of discontent which he did not share. He refused to believe that he himself was not an object of adoration to the great body of the people, because the official lickspittles by whom he was surrounded vied with each other in flattering his imbecile vanity.

Had he been left to his own devices he would have been like the doomed king who refused to believe that his people were hungry until thirty thousand starving _sans-culottes_ were thundering at his palace gates.

It soon became generally known throughout the country that strained relations existed between Judge Willis and the whole race of officialdom at the capital. The new Judge was known to have given expression to a desire for a reform of the law; and it was commonly a.s.sumed that it was to his liberal ideas that he was indebted for the hostility with which he was regarded by the ruling faction. The Reform Party warmly espoused his cause, and their organs devoted much s.p.a.ce to extolling his wisdom, moderation and other high qualities. Addresses to him were circulated throughout some of the rural const.i.tuencies, and there was a manifest disposition to cater for his favour and patronage. Had he been endowed with discretion and good judgment he might, without any dereliction from his judicial duty or integrity, have rendered incalculable service to the cause of freedom and good government. Doubtless the rendering of such service would sooner or later have involved him in complications with the official party, but if he had kept his head it is doubtful if they could have prevailed against him. Unfortunately he proved to be too weak for his position, and allowed himself to be completely out-manoeuvred. He ruined himself, without accomplishing anything for the cause which he wished to serve. The time was rapidly drawing near when, by means of a judicial decision, he was to shut the door forever upon any prospect of his advancement in this country, and when he was to be made the subject of official communications resulting in his permanent removal therefrom.

As has already been mentioned, there had been frequent differences of opinion between Mr. Willis and his colleagues, almost from the beginning of the former's a.s.sumption of judicial functions. The acting justices of the Court of King's Bench were at that time three in number, and consisted of the Hon. William Campbell, Chief Justice, the Hon. Levius Peters Sherwood, senior puisne judge, and Mr. Justice Willis himself.

During the first Term which ensued after Mr. Willis's arrival in this country--which was Michaelmas Term, 1827--he had occupied the bench along with the other two judges. In Hilary Term of 1828 the Court had been presided over by the same three judges, except that Chief Justice Campbell had occasionally been absent from his seat in consequence of infirm health. Immediately after the close of the last-named Term the Chief Justice, having obtained from the Lieutenant-Governor six months'

leave of absence, departed for England, whence he did not return until after a long holiday. The Court of King's Bench was thus left with only the two puisne judges, who accordingly presided by themselves during the following Easter Term. They had by this time come to dislike each other most cordially, insomuch that it taxed their powers to the utmost to treat each other with becoming respect. Sometimes the effort was beyond their power, and they snapped and snarled at one another upon the bench like two querulous old women. They now differed in opinion upon almost every case which came before them, and it is impossible to doubt that their differences were in large measure due to their personal hostility.

This was a serious matter, for, as no third judge was at hand to give the preponderance of authority to either side, there was a practical dead-lock in much of the business of the Court. Suitors were put to serious delay, inconvenience, and consequent expense. Counsel were profoundly disgusted, and of course took sides for and against. Judge Willis was so sensible of the deplorable consequences of such a state of things that, as soon as Term was over, he entered into a minute and searching investigation of the const.i.tution and power of the Court of King's Bench as established in Upper Canada.[106] He was desirous of finding some way out of the difficulty, or at all events of knowing precisely upon what ground he stood. But a still more serious evil soon began to loom up before his mind, for the result of his investigations was a conviction that the Court could not legally sit in Term, unless the full court--_i.e._, the Chief Justice and the two puisne Justices--were present.

This conviction was a momentous one, for, if sustained, it would nullify much that had been done in the Court ever since its establishment in 1794. The frequent practice had been for two Judges, and sometimes even for only one, to sit during Term; and, as has been seen, Judge Willis himself had so far acquiesced in this practice as to sit during a part of the preceding Hilary Term, and during the whole of Easter Term, with Justice Sherwood as his only colleague. He had however a.s.sumed the prevailing practice to be justified by the const.i.tution of the Court, and had not examined the matter on his own account until impelled to do so by the reasons already indicated. He now discovered, as he believed, that the practice was altogether unwarranted, and that all that had been done under it was liable to be upset. The first section of the Provincial Statute under which the Court had been created[107] enacted that "His Majesty's Chief Justice, together with two puisne justices,"

should preside therein. All the subsequent sections except those relating to appeals had been repealed by a later Provincial Act,[108]

and although power was given to the senior puisne Judge, in the absence of the Chief Justice, to _teste_ the process, and to _any_ of the Judges to sit at _Nisi Prius_, there was no authority to sit _in Banco_, unless the Court were full. Having arrived at a conclusion on the subject, Judge Willis at once communicated the fact to the Colonial Secretary, the communication being made by letter, forwarded through the Lieutenant-Governor, and left purposely unsealed in order that that dignitary might possess himself of the contents, to which his attention was specially called by a separate note. Sir Peregrine could not refuse to transmit the Judge's missive, but he took good care to malign him in an accompanying despatch. "It is with pain" he wrote, "I am compelled to observe that, having presided as a Judge for the first two terms after his arrival, without finding more occasion than all the respectable Judges who have preceded him to make the administration of justice subservient to popular excitement, Mr. Willis has been either unable or unwilling within the last few months to avoid making his proceedings, either in the Civil or Criminal Court, the prominent subject of political discussion, and the pretence of attacks _from the vilest quarters_, and of the grossest kind, upon those who were a.s.sociated with him in the administration of justice, and of whom I shall speak only justly when I say that the measure of respect and esteem in which their public conduct has ever hitherto been held, and is now held, by their Government, and by every person except by Mr. Willis, and by a party with whom I have lamented to find him a.s.sociate himself, and _who are not very respectable in any sense_, is not to be attained but by a long period of correct and honourable service." The italics are not Sir Peregrine's, but they are deserving of all the emphasis which distinguishing type can give them, as exemplifying the way in which the representative of Majesty in those days was not ashamed to secretly vilify persons who opposed his policy: persons who, whether contemplated from a moral or an intellectual point of view, were elevated so far above him that it is impossible to inst.i.tute any comparison between them. Will it be believed that the gentlemen who were "not very respectable in any sense" were John Rolph, Marshall Spring Bidwell, Dr.

William Warren Baldwin, and Robert Baldwin? Was it not an honour to be disreputable in such company? Some of these, at least, were men whom no pressure of outward circ.u.mstances could have induced to stab their bitterest foe in the dark, as this eminently respectable vice-regal a.s.sa.s.sin was in the frequent habit of doing in his despatches, and as he did when he wrote the mendacious words above quoted. Judge Willis doubtless a.s.sociated with these men because he found them more to his taste than anyone else with whom he became acquainted in York. And his doing so was made much more of than the facts warranted. His acquaintance with the persons named was not of such a nature as to be called intimate. In his "Narrative," already quoted from, he has recorded that to the best of his recollection he never conversed with Dr. Baldwin, Mr. Rolph, Mr. Bidwell, "or any other person politically opposed to Mr. Robinson" a dozen times in the course of his life; and in a separate defence of his conduct written at Bath in December, 1828, he says: "From what I know of Dr. Baldwin and his family, I must always sincerely regret that I have not known more."[109]

Having arrived at such a decision as to the const.i.tution of the Court, and having apprised the Colonial Secretary thereof, he took the earliest feasible opportunity of making it known to the Provincial bar. At ten o'clock in the forenoon of the opening day of Trinity Term--which was Monday, the 16th of June--he repaired to the Court House at York. While robing himself in the Judge's chamber he was joined by his colleague, Justice Sherwood, and a few moments afterward they both proceeded to the Court room, attended by the Sheriff in the usual manner. The Court having been formally opened, Judge Willis arose and addressed the audience, standing all the while, after the manner of a counsel at the bar. In the course of his remarks, which occupied nearly an hour in delivery, he expressed himself in very positive terms as to the const.i.tution of the Court. He declared it to be his decided opinion that the Court could not be legally held without the presence of the Chief Justice and two puisne Judges; that everything which had theretofore been done in the Court by two Judges only was null and void; that the Lieutenant-Governor had no authority to grant leave of absence to a Judge without the express approbation of the Executive Council; that he (Judge Willis) had made enquiry at the office of the Executive Council, and had found that leave had always been granted by the Lieutenant-Governor alone, in pursuance of which leave Chief Justice Campbell was now absent from the Province. The manner in which the leave of absence to the Chief Justice, as well as to many other persons holding situations under the Provincial Government, had been granted by the Lieutenant-Governor, was p.r.o.nounced to be, in Judge Willis's opinion, not only irregular but illegal, whereby the inc.u.mbents had forfeited their several offices. During the preceding Term an order of the Court had been pa.s.sed by Judge Sherwood and himself. That order he now rescinded, so far as his authority was concerned, and he expressed his regret that he had entered upon the discharge of his judicial functions without having previously acquainted himself with the state of the law. He added that he had felt it to be his imperative duty to declare his opinion as to the incapacity of the Court to legally proceed with the business before it; and that, holding that opinion, he had resolved to decline to sit any longer upon the bench, though he would remain at hand to attend to any functions which he could legally discharge.

This extraordinary address, it may be presumed, was not altogether a surprise to Justice Sherwood, as Justice Willis had previously notified the Lieutenant-Governor of his intention to give currency to his views at the commencement of Term, and Sir Peregrine would be certain to discuss the matter with the Attorney-General, through which medium the facts would be tolerably sure to find their way to Justice Sherwood. The latter seemed to take the matter very coolly. He informed the bar that he would not take upon himself to p.r.o.nounce an opinion on the subject of the const.i.tution of the Court, as there was nothing before him which rendered it necessary for him to do so. He added that he would adhere to the practice which had uniformly prevailed, and that he would not hesitate to proceed with the ordinary business of the Court, adjourning it from day to day as occasion required. Judge Willis, still standing, then said: "You cannot adjourn a Court that does not exist. The Court is not legally const.i.tuted. Its functions cannot be exercised, and any proceedings you may take will be void." "I am aware," replied Mr.

Sherwood, "that such is your opinion; but I have a right to mine and I shall pursue the course I have indicated. If that course, notwithstanding the practice which has. .h.i.therto prevailed, should prove to be wrong, I shall extremely regret it; but I feel it to be a matter of too much importance to the business of the country to take upon myself to vary from it, without the interference of a higher authority."

Judge Willis then briefly repeated his protest, and retired from the bench. His colleague, after transacting some unimportant routine business, adjourned the Court until the following day. Throughout the rest of the Term he was the sole occupant of the Bench.

Judge Willis's conduct on this occasion does not admit of much diversity of opinion. For one thing, as was subsequently decided by the Privy Council, he was wrong in his view of the law. This is of itself an important consideration. But even if his view had been a sound one, admitting of no doubt, he incurred a very serious responsibility in giving currency to it at such a time, and in such a manner. His conduct was certain to produce great excitement and disturbance in the public mind. It was certain to create an increased distrust of long-settled inst.i.tutions, which it was highly essential for the well-being of society that the public should regard with confidence and respect.

Besides, the rendering of the past and present proceedings of the Court liable to doubt and uncertainty could not fail to seriously affect the business interests of the country. If the practice of the Court had been wrong, and if many of its proceedings were invalid, the wisest course would have been to quietly take steps to bring about remedial legislation, whereby all defects might have been cured, without the serious risk of reviving old animosities and long-settled disputes. But such a course as Judge Willis saw fit to adopt was wholly uncalled for, no plea to the jurisdiction having been pleaded in any case before the Court. It was certain to produce ill, without any possibility of good.

He moreover placed in the hands of the Executive a rod for his own back--an implement of which they speedily availed themselves to inflict grievous punishment.

On the following day, which was Thursday, the 17th, Judge Willis formally notified the Lieutenant-Governor of the public delivery of his opinion, adding that he was nevertheless most desirous of discharging such duties as he could legally perform consistently with his view of the law. Judge Sherwood meanwhile continued to sit on the bench alone, and to transact such business as came before him. Some influential members of the bar found themselves in a quandary. After Judge Willis's decision, they entertained grave doubts as to the legality of the Court, and hesitated as to the advisability of taking any further proceedings in cases committed to them, until the vexed question should be settled.

Judge Sherwood, though he had dissented from his colleague's view, and though he plainly testified by his persisting in sitting and holding Court that he still continued to dissent, had not given any formal judgment, nor had he even verbally stated any grounds for his opinion.

With a view to obtaining light for their guidance in this perplexing emergency, Dr. Baldwin, his son Robert, and Mr. Simon Washburn, another prominent member of the bar, addressed a written application to the Court, in the person of Justice Sherwood, requesting to be favoured with his opinion on the matter. The application was made on Thursday, the 17th, and replied to by Mr. Sherwood in writing next day. The phraseology of the reply made it quite clear that the Judge felt by no means strong in his position. "You are desirous," he wrote, "that I should express an opinion from the bench on the present state of this Court, but it appears to me any opinion of that sort would be extra-judicial. No one but His Majesty's Representative has any right to ask for the opinion of a Judge where no cause or regular motion, according to the practice of the Court, is pending before him." There was more to the same no-purport. It was clear that the applicants were not to receive much a.s.sistance from Justice Sherwood in resolving their doubts. The Judge's response was no sooner communicated from the bench than the two Baldwins and Mr Rolph then and there threw off their gowns and left the Court, declaring that they concurred in opinion with Judge Willis, and that they could not continue to transact business in a Court which they believed to illegally const.i.tuted.

The emergency brought about by Judge Willis's decision, and by his consequent withdrawal from the bench, was one for which the Executive deemed it essential to provide without unnecessary delay. It was manifestly impossible that matters should remain _in statu quo_. The time for holding the annual circuits was approaching. Mr. Sherwood was the only Judge remaining on the bench, and a Court composed of a single Judge is not a satisfactory tribunal for all purposes of justice. The Council took the opinions of the law officers of the Crown as to the soundness of the Judge's views with respect to the const.i.tutionality of the Court of King's Bench. Those opinions were in direct opposition to the conclusion at which Judge Willis had arrived. The Attorney-General's was a remarkably exhaustive and lucid exposition of the law bearing upon the question. It was also free from ambiguity, and left little room for doubt. These opinions were strengthened by that of Justice Sherwood, who, at the request of the Executive, also prepared an elaborate paper on the subject, in which he expressed precisely similar views to those enunciated by the Attorney-General. The question was then submitted to the Crown officers whether the Lieutenant-Governor could legally remove Judge Willis from office and appoint a successor. The answer prepared by the Attorney-General, and signed both by him and Solicitor-General Boulton, came with remarkable prompt.i.tude. "Upon the points submitted to us," it ran, "we are of opinion, 1st: That the power to remove an officer depends on the tenure of his office. In this, as in other colonies, the appointment of a judge is during pleasure; and we conceive that in law any person holding an office on such a tenure is removable at pleasure: that is, at the pleasure of the Lieutenant-Governor, acting in the name and on behalf of the King. The reasons for such removal are to be rendered to His Majesty by the Lieutenant-Governor, who is responsible for their sufficiency.... 2nd: We are of opinion that a removal of a Judge of the Court of King's Bench necessarily vacates the office, and that another person may be appointed to fill the vacancy, subject to be confirmed or disallowed by His Majesty."

The Executive acted with great circ.u.mspection. Fortified as they were by these strongly-worded opinions, and a.s.sured as they felt of the legality of their contemplated proceedings, they did not permit themselves to be betrayed into indiscretion. On the 25th of the month they addressed a letter to Judge Willis, referring to his communication to the Lieutenant-Governor on the 17th, in which he had professed willingness to discharge such duties as he could legally perform. He was asked what explanation he had to offer, and what duties he was prepared to undertake. On the 26th he replied that he did not feel at liberty to p.r.o.nounce an extra-judicial opinion, and that he could only define the precise nature of his duties when the matter should come judicially before him. The Executive thereupon p.r.o.nounced his doom, and a writ was issued whereby he was removed from office until His Majesty's pleasure should be known. The Lieutenant-Governor, through his Secretary, notified him that the Council had felt it inc.u.mbent upon them to advise this step.[110] The "amoval" was now an accomplished fact. A vacancy was thus created on the bench, which was filled on the 2nd of July by the appointment of Christopher Alexander Hagerman to a puisne judgeship.

The news of Judge Willis's "amoval" spread rapidly through the Province, and produced widespread excitement. The circ.u.mstance that his course had met with the approval of Rolph and the Baldwins led to the belief among non-professional people that he was sound on the legal question, and that he had been driven from the bench because he would not stoop to corruption. The case of Judge Thorpe was exhumed from the dust of twenty years, and the amoval of Judge Willis was believed to be a mere re-enactment of that forgotten iniquity. As for Judge Willis himself, he determined to proceed at once to England to present his side or his case, in the form of an appeal from the order of amotion, at the Colonial Office. Before his departure he received addresses of condolence from various parts of the Province. Numerously-signed pet.i.tions in his favour were transmitted to the king, and to the several other branches of the Imperial and Provincial Legislatures. A long requisition from a number of influential persons in the County of Lincoln entreated him to represent their const.i.tuency in the a.s.sembly.

People who were usually sensible appear to have lost their heads for a time during this exciting period. A large meeting of the Judge's sympathizers was held in Toronto, at which Dr. Baldwin and Mr. John Galt,[111] with their wives, were appointed a Committee to watch over the interests and insure the protection of Lady Mary and her family during the absence of her lord; and Robert Baldwin was added to the Committee as her Ladyship's solicitor.

Judge Willis took his departure from York on the 11th of July. As he expected that he would very soon be able to procure from the Colonial Office a reversal of his "amoval," and that he would be reinstated in his judgeship, to the great discomfiture of the Lieutenant-Governor and his satellites, he did not think it necessary that his family should accompany him to England. The suitable disposal of the members of his household was an embarra.s.sing problem for him. In good sooth, he was in a situation somewhat a.n.a.logous to the man in the familiar old story, who came to the bank of a wide stream, having in his possession a fox, a goose, and a bag of corn. The application is easy. Mrs. Willis and Lady Mary could by no means be left to keep house together unless the head of the establishment was near at hand to keep the peace between them. The relations between Lady Mary and Miss Willis, though far from amicable, were somewhat less strained. Mr. Willis accordingly took with him his mother only, leaving his wife, child and sister behind him; though it is to be presumed that the above-mentioned Committee had a sinecure, so far as any special attendance upon or protection over Lady Mary was concerned.

A series of acrimonious despatches from the Lieutenant-Governor preceded Mr. Willis across the Atlantic. For weeks--probably for months--before the delivery of his unfortunate decision, the espionage system had been put in full operation against him, and measures had been taken to watch his personal habits and pastimes. There had been a firm determination to effect his ruin,[112] and the strong suspicion that such was the case had done much to array a majority of the inhabitants on his side. "It is my duty to state to you in the most decided terms," wrote Sir Peregrine Maitland to the Colonial Secretary, on the 6th of July, "that his [Mr.

Willis's] rest.i.tution to office, while it would be received by the most portion of the population as a triumph over the Government which Mr.

Willis has ungratefully and wantonly insulted, would be most pernicious to the peace of this colony, and an act of the most aggravating injustice to those faithful servants of the Crown against whom he has, for unworthy purposes, dishonourably laboured to excite the prejudice and hatred of the ignorant and malicious." It is worth while to note that this extract contains a clear admission by the Lieutenant-Governor that his Government was regarded with disfavour by "the most portion of the population:" an admission directly at variance with many statements made by him in former despatches, as well as in speeches to the Provincial Parliament.

Upon reaching England Mr. Willis put himself into immediate communication with the Colonial Office. He took up his quarters at the house of his brother, the Reverend W. D. Willis, at Bath. There he prepared an elaborate statement of his case, which was duly forwarded to the Colonial Secretary. After some delay he succeeded in obtaining copies of the several despatches of Sir Peregrine Maitland in which the charges against him were formulated with wearisome reiteration. These indictments against him, which, though signed by Sir Peregrine, were doubtless in reality prepared by Mr. Willis's arch-enemy, Attorney-General Robinson, were certainly of the most formidable character. They went over the whole course of the Judge's procedure, from the time of his arrival in the Province down to his departure therefrom. To the serious grounds of complaint which had unquestionably been given were added numerous delinquencies of the most petty and trifling nature. It was stigmatized as "a great indecency" that Judge Willis had been seen in a dress "but little according with his situation."[113] In view of the interests involved, and of the grave nature of the questions to be decided, it seems ludicrous that the appellant should have been called upon to reply to an accusation of this nature.[114] A perusal of these despatches, however, rendered necessary a supplementary statement and narrative, wherein every count in the indictment was either traversed, or, in legal parlance, confessed and avoided. But Mr. Willis soon found that he was not to gain so easy a triumph over his enemies as he had previously allowed himself to suppose would be the case. The question to be decided was a purely technical one, and after the matter had been for some time under consideration at the Colonial Office it was referred for decision to the Privy Council, where it was not disposed of for nearly a year. The conclusion finally arrived at was that Mr. Willis had been wrong in his view of the question in dispute, and that the Executive Council, in amoving him from office, had not acted in excess of their authority. Under such circ.u.mstances his return to Upper Canada was of course out of the question; but as his conduct was attributed to error of judgment rather than to any serious dereliction from duty, he received an appointment to a judgeship in the South American colony of Demerara.

From all the circ.u.mstances, then, it is clear that Judge Willis, though he was in some sense a victim of Executive intolerance in Upper Canada, was himself largely to blame for his downfall, to which he contributed by his want of caution and calm good sense. But many of the circ.u.mstances detailed in the present chapter were unknown to the bulk of the Canadian people, by whom he was regarded as a martyr to his upright and liberal principles. His amoval produced a wider excitement than any event since Gourlay's time. It tended greatly to embitter public opinion, and was unquestionably a strong factor in producing the discontent which ultimately found expression in open rebellion. For this reason it has been thought desirable to go somewhat minutely into details which are in themselves fraught with instruction, and as to which the people of Canada, even at the present day, are very inadequately informed.

[Sidenote: 1829.]

Mr. Willis felt his defeat very keenly, more especially as he had confidently looked forward to a successful termination of his appeal. At his instigation the subject was brought before the attention of the House of Commons by Lord Milton, on Tuesday, the 11th day of May, 1830.[115] Sir George's Murray's explanation, which involved a narrative of the circ.u.mstances in detail, proved satisfactory to the House, and the matter was allowed to drop. But the amoved Judge was fated to have greater reasons still for deploring that he had ever taken up his abode in Canada, as his residence there led to the rupture of his family ties and the total wreck of his domestic happiness. It will be remembered that Lady Mary and her child, together with Miss Willis, had remained at York. Upon learning the decision of the Privy Council in his case, Mr.

Willis wrote to his wife and sister, requesting them to dispose of his house there, and to return home as speedily as possible. During the long interval which had elapsed since the ex-Judge's departure for England, the two ladies had been left to amuse themselves as best they could in the little capital. They occasionally went into society, and received a certain amount of attention from that portion of it which had been favourable to Judge Willis, as well as from some of the military officers stationed there. Among others whose acquaintance they formed was a certain Lieutenant Bernard, an officer of the 68th Light Infantry, whose regiment was then in Canada. He occasionally rode out with Miss Willis, who was an accomplished equestrienne, but he did not appear to be on specially intimate terms with Lady Mary. On the 16th of May, 1829, Lady Mary set out for England by way of Montreal, Miss Willis remaining behind for a week to make a final disposition of the house. On reaching Kingston, Lady Mary was met by Lieutenant Bernard, who accompanied her to Montreal, whence the pair several months afterwards fled together to England, Lady Mary leaving her child behind her in the care of one of her maids. Mr. Willis brought an action against Bernard, who had by that time succeeded to a Captaincy. The case was tried in the Court of Common Pleas at Westminster on Thursday, the 9th of February, 1832, when the plaintiff recovered 1000 by way of damages. A report of the proceedings will be found in _The Times_ of the following day.[116]

[Sidenote: 1832.]

It may be of interest to Canadian readers to learn that Mr. Willis was some years afterwards appointed to a seat on the bench of the Supreme Court of New South Wales. On the 8th of February, 1841, he was under a local statute appointed resident Judge for the District of Port Philip.

While officiating in that capacity he came into conflict with Sir George Gipps, Governor of the Colony, and the Executive Council, by whom he was once more "amoved" from office. The order of amotion, which was made on the 17th of June, 1843, was however reversed by the Imperial Privy Council for irregularity. The Lords of the Judicial Committee, before whom the case was heard in June and July, 1846, reported that in their opinion the Governor-in-Council had power in law to amove Mr.

Willis, and that the facts were sufficient to justify his amoval, but that an opportunity ought to have been afforded him of being previously heard. The requisite notice not having been given, the omission was held to vacate the order of amotion, and judgment was rendered accordingly.[117]

FOOTNOTES:

[96] See his "Narrative of Occurrences in Upper Canada," written from Bath to the Secretary of State for the Colonial Department, dated 5th December, 1828, and included in pp. 273-288 of the blue book on the subject issued by the Imperial Government in 1829.

[97] There is a covert irony in the portion of Judge Willis's _Narrative_ which refers to this subject. "I wished to think," he writes, "and from the attention he seemed to pay to business I actually worked myself up into the belief, which I frequently expressed, that Mr.

Justice Sherwood was a _hard-headed_ sensible man; but I became convinced that, though right in the former conjecture, yet so far as legal knowledge or abilities were concerned, I was mistaken in the latter part of my conclusion." The italics are Judge Willis's own.

[98] See Judge Willis's _Narrative_, ubi supra.

[99] So far as mere diction is concerned I have here chiefly followed Collins's own report of this episode, as published in the _Freeman_, but I have also before me the Attorney-General's account, as well as the more elaborate one of Judge Willis himself, and the three do not materially differ in this respect.

[100] _Ante_, p. 13.

[101] The _Freeman_, April 17th, 1828.

[102] The case, as put by the Judge, was purely hypothetical. "_If_ the Attorney-General has acted so and so, he has neglected his duty." See _ante_, p. 174.

[103] The announcement ran as follows:--"Preparing for publication.--A View of the Present System of Jurisprudence in Upper Canada; by an English Barrister, now one of His Majesty's Judges in this Province.--_Meliora sperans._"

[104] It was time for some one to undertake the duty of ameliorating the criminal law of Upper Canada, which was that of England as it stood on the 17th of September, 1792, except in so far as it had been altered by subsequent legislation. At the a.s.sizes for the Home District, held at York in the autumn of 1827, within a few weeks after Judge Willis's arrival in the Province, a boy was capitally convicted and sentenced to death for killing a cow.