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 dispassionate examination of
all the circumstances 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 assiduity 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 noble 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 circumstances 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
nobleman's daughter was certain to confer. These advantages were fully
appreciated, but they involved certain inevitable consequences, the
principal 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
institutions. 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 entitled. 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 documents, 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 entitled 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 entitled 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 passed over in favour of
Judge Willis, a stranger to Canada, her institutions 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
circumstances, 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 pronouncing 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 assume
that his integrity is taken for granted, and should deem it beneath his
dignity to attempt any vindication of his rectitude while an occupant of
the bench. Moreover, there were no circumstances 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
Assembly, he attended to hear the debates, and fraternized with Rolph,
Bidwell, and other members of the Opposition--a circumstance 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 constituted 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 Assizes 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 circumstances 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 Assize. 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 pass 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 assembled 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 circumstances. 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 assume 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 passing 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 assaults 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."
"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
latitude 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
latitude 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
assumption 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 instituted 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 acumen; 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 title-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
assumed for the occasion, and was regarded as a covert sneer at existing
institutions 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 passing away! Content with the laws! When a majority of the
population, through their representatives in the Assembly, 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 assurance 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 Assize! 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 assumed 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 space to extolling his wisdom,
moderation and other high qualities. Addresses to him were circulated
throughout some of the rural constituencies, 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 assumption 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 constitution 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 assumed the
prevailing practice to be justified by the constitution 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 associated 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 associate 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 institute 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 circumstances could have induced to stab their
bitterest foe in the dark, as this eminently respectable vice-regal
assassin 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 associated 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 constitution 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
constitution 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 pronounced to be, in Judge Willis's
opinion, not only irregular but illegal, whereby the incumbents had
forfeited their several offices. During the preceding Term an order of
the Court had been passed 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 pronounce an opinion on the subject of
the constitution 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 constituted. 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 hitherto 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
institutions, 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 assistance 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 constituted.
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 constitutionality 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 promptitude. "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 circumspection. Fortified as they were by
these strongly-worded opinions, and assured 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
pronounce 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 pronounced 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 incumbent 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 circumstance 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
petitions 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 constituency in the Assembly.
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 embarrassing problem for him. In good sooth, he was in
a situation somewhat analogous 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] restitution 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
circumstances 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 circumstances, 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
circumstances 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 circumstances 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 L1000 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 Assizes 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.
[105] _On the Government of the British Colonies._ London, 1850.
[106] The investigation, according to Judge Willis's own testimony, was
entered into partly in consequence of a suggestion which he received on
the subject. See the text of his written opinion, embodied in pp. 66-74
of the Imperial blue book issued in 1829, entitled "Papers relating to
the Removal of the Honourable John Walpole Willis from the Office of One
of His Majesty's Judges of the Court of King's Bench of Upper Canada."
It seems probable that the suggestion emanated from Dr. Baldwin.
[107] 34 Geo. III., c. 2. This statute was framed by the Hon. William
Osgoode, first Chief Justice of Upper Canada, a gentleman of great
learning, who had been sent out from England for the express purpose of
organizing the Courts of the Province.
[108] 2 Geo. IV., c. 1.
[109] See pp. 249-267 of the Imperial Government's blue book on the
subject, _ubi supra_.
[110] The notification was dated the 26th of June, whereas the formal
document issued by the Council was not signed until the 27th. Mr. Willis
attached a good deal of weight to this irregularity, which however was
of less importance than might at first sight be supposed. The Council
had fully made up their minds on the 26th, and the notification was
despatched accordingly, though the order of amotion was not actually
ready for signature until the day following.
[111] The well-known author, who was then in Canada as representative of
the Canada Land Company.
[112] "Cabot," in _Blackwood's Magazine_ for September, 1829.
[113] See despatch marked "Separate," from Major-General Sir Peregrine
Maitland to Mr. Secretary Huskisson, dated 6th July, 1828.
[114] His reply will be matter of surprise to the staid and
decorously-attired judges of the present day. "On all ordinary
occasions," he wrote, "I usually wore a _black velvet coat and
waistcoat_. The first time I saw the Chief Justice he had on a black
kalimanco or camlet jacket, which I have seen him wear even on the
bench. I have met the Lieutenant-Governor frequently walking through the
streets with an olive-coloured square-cut velveteen jacket and
waistcoat; and a few days before I left York I beheld Mr. Justice
Sherwood in a grass-green cloth jacket with white metal buttons. I
merely mention these 'extravagancies' to show that my dress was neither
improper nor extraordinary."--See the _Narrative_, ubi supra.
[115] See Hansard's _Parliamentary Debates_, N. S., Vol. xxiv., 551-555.
[116] Some further particulars may be found in 8 Bingham, 376; also in 5
C. & P., 342.
[117] See the case of John Walpole Willis, Appellant, _versus_ Sir
George Gipps, Knt., Respondent, 5 Moore's Reports of Privy Council
Cases, 379. From an _obiter dictum_ of one of the judges in the case it
would appear that the order of amotion from the bench of this Province
was finally set aside on technical grounds, owing to the appellant's not
having been heard in Canada. After diligent search, I have been unable
to find any report of this decision, either in the official reports of
the Privy Council or in any of the newspapers or periodicals of the
time.