CHAPTER VIII.

THE "AMOVAL" OF MR. JUSTICE WILLIS.

The Forsyth embroilment extended over a long period, and from time to

time during several years it continued, at longer or shorter intervals,

to thrust itself upon public attention. Meanwhile it was not the only

instance of abuse of power on the part of the Executive to which the

people of Upper Canada were constrained to submit. Several other notable

contemporaneous examples shared with it in the unenviable work of

widening the breach between the Government and the people, and in

destroying popular confidence in the impartial administration of

justice. It is a rather singular fact that of all the many high-handed

measures resorted to during the existence of the Ninth Parliament, the

one which aroused the greatest indignation was perhaps the least

blameworthy of them all. It has been the fashion with writers who have

dealt with this period of our history to represent the amoval of Justice

Willis as being upon the whole the most glaring iniquity of the time.

This view is not borne out by the facts. In the Willis affair Sir

Peregrine Maitland had recourse to the espionage system, and certainly

went to the utmost verge of his authority, but he cannot be said to have

run violently in the teeth of precedent and good sense, as was done, for

instance, in the Forsyth case. Nor can it be said that he acted with

despotic rashness or precipitation. His decade of misrule in Upper

Canada was characterized by many cruel, tyrannical and shameful deeds:

deeds which stare out from the pages of the past with lurid

distinctness. He has enough to answer for at the bar of history; and it

is quite unnecessary to load the formidable indictment against him with

surplusage or dubious matter. A careful and 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.

The Story of the Upper Canadian Rebellion, Volume 1 · 第 8 / 18 章