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The Story of the Upper Canada Rebellion, Volume 1
by John Charles Dent
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Having accomplished his purpose, Captain Phillpotts and his soldiers departed, accompanied by the Sheriff and the surveyor. They were no sooner out of the way than Forsyth and his servants set themselves to work to repair damages, and before nightfall the enclosure was rebuilt; the premises, with the exception of the blacksmith's shop, being restored to the condition in which they had been before the assault upon them. But intelligence of the restoration was speedily conveyed to Sir Peregrine Maitland, who again despatched the same emissary, and the drama of demolition was re-enacted. The landlord of the Pavilion then gave up the contest, so far as any attempt at reconstruction was concerned, and proceeded to obtain redress by due course of law.

Now, it may perhaps be admitted that Forsyth was rightly served, or at any rate that he deserved little or no sympathy. His enclosure of the Crown reserve had been without any strict colour of right, and had been due to pure greed and selfishness. But his blacksmith's shop had been constructed on the land as far back as 1821, when he had purchased the adjoining lot from William Dickson, and no one had ever questioned his right to maintain it there. He seems to have thought that he had as good a claim to the property as anybody. He had been informed, contrary to the fact, that the Government reserve extended only to the lower bank, and did not cover the land at the top. He might easily have discovered that his information was misleading, but he had not chosen to take so much trouble, and deserved to suffer the legal consequences of his neglect. He could undoubtedly have been dispossessed by means of an action of ejectment, with the costs of which he would justly have been saddled. But he had a right to expect that, after being allowed to remain so many years in undisturbed possession, he should only be dispossessed by civil process. It was not a case where an arbitrary removal was justifiable, such as may lawfully take place when it becomes necessary to abate a nuisance. But it was above all things intolerable that the military should have been employed for such a purpose. Sir Peregrine Maitland, in sending Captain Phillpotts on the expedition, had acted, not in his capacity of Lieutenant-Governor, but in that of Major-General Commanding the Forces in Upper Canada. This it was that wrought up the public pulse to such a pitch of excitement. This it was that created a dangerous antagonism between the people and the soldiery, and led to frequent quarrels and bickerings between them. The Committee subsequently appointed by the Assembly to investigate the subject echoed the popular sentiment when they reported that "a person long in possession of land, like the petitioner, ought to have been ejected by the law of the land, which is ample, when impartially administered, for securing the rights of property, but the interference of the military, by such acts of violence, for maintaining supposed or contested rights, is justly regarded with jealousy in all free countries, and ought to be seriously regarded in a colony where the most unprecedented outrages have been perpetrated without prosecution, and even followed by the patronage of the local Government upon the wrong-doers."[91] The presence of the civil power on the occasion, in the person of the Sheriff, had been even an aggravation of the offence, for the Sheriff had thus been made to lend his countenance to the proceeding. As for the Lieutenant-Governor's action in the matter, he himself was solely to blame, for his intentions were not made known to the Executive Council, or, so far as appears, to any member of that body. It was simply and solely a barefaced and most impudent abuse of authority, the responsibility for which rests upon no shoulders but his own.

Forsyth had no success in his appeals to the law. He brought two actions of trespass, one of which was against Sheriff Leonard and Captain Phillpotts jointly, for removing the fence and blacksmith's shop; and the other of which was against Captain Phillpotts alone for removing the fence the second time. Sir Peregrine instructed Attorney-General Robinson to defend both these suits, and to vindicate the Crown's title to the reserved land.[92] To effect the latter object in the most formal and decisive manner, the Attorney-General filed an information for intrusion against Forsyth, upon which a verdict was rendered in favour of the Crown. The plaintiff altogether failed in his action against Phillpotts and the Sheriff, and the decision in that case rendered it useless for him to proceed with the action against Phillpotts alone.[93]

[Sidenote: 1828.]

While those suits were in progress, Forsyth, finding that public opinion, if not in his favour, was at least hostile to the Lieutenant-Governor, sent in a petition to the Assembly, setting forth the circumstances, and praying for redress. This was during the session of 1828. The Assembly entertained the petition, and appointed a Committee of Inquiry. The Committee proceeded to inquire accordingly. While their investigations were in progress they resolved to examine two of the Government officials, who, as there was reason to believe, could throw light upon Sir Peregrine's reasons for such arbitrary conduct as that of which he had been guilty. The officials whose evidence it was thought desirable to obtain were Colonels Coffin and Givins, both of whom were heads of departments. The former occupied the position of Adjutant-General of Militia for Upper Canada; the latter was Superintendent of Indian Affairs. Both of these gentlemen were summoned to attend before the Committee at a specified time. In this there was nothing strange or unusual. It was a matter of frequent occurrence for officials of the Government, high and low, to be summoned before Parliamentary committees while the Legislature was in session; and there was no question as to the right of such committees to require such attendance. In this instance, however, the persons summoned were not permitted to obey the behests of the Committee, and in the attendant circumstances there were pretty plain indications of crookedness and collusion between the Crown officers and Sir Peregrine Maitland. Each of the two officers concerned, immediately upon receiving his summons, caused the fact to be communicated to the Lieutenant-Governor, and each wrote a shuffling letter to the Chairman of the Committee. Later in the day the Lieutenant-Governor positively declined to permit the attendance of the persons summoned, assigning as a reason that he had not been made acquainted with the facts as to which it was desired to interrogate them. Now, when one considers all the facts and circumstances of the case, one is driven to the conclusion that Colonels Coffin and Givins were in possession of certain information which the Executive, or at any rate the Lieutenant-Governor, had a strong interest in keeping secret. Why else were they forbidden to attend? The reason assigned was certainly not a sufficient one. In the first place it was not founded upon fact. That the Committee had been appointed for the specific purpose of investigating the circumstances connected with the Niagara Falls outrage was matter of common notoriety. When the two Government officers were summoned to give evidence before that Committee there could be no doubt that the intention was to examine them touching their knowledge of the matter in hand.[94] Some years before this time, when the Compact were all-powerful in the Assembly, as well as in the Upper House, a custom had been introduced of notifying the Lieutenant-Governor whenever it was proposed to examine any of the Government officials as witnesses before a Parliamentary committee. It had been customary to specify, in the address of notification, the subject on which it was intended to take evidence. This, however, had been a mere matter of courtesy and conventionality, upon which nobody had any right to insist; and the practice had not been uniform or consistent, various instances having occurred where Crown officers had been summoned and examined as witnesses without any such notification having been given. Upon such a flimsy pretext, however, did Sir Peregrine Maitland base his refusal to permit the two witnesses to attend for examination in the Forsyth case.

The Chairman of the Committee duly reported to the Assembly the non-attendance of the witnesses, and that body determined that its authority should not thus be defied and set at naught with impunity. The chief offender, the Lieutenant-Governor—or the Commander of the Forces, if he was to be considered as acting in that capacity—was of course beyond reach, but proceedings were forthwith instituted against the recalcitrant witnesses. Warrants were issued against them by the Speaker, in order that they might be brought up before the House, in custody of the Sergeant-at-Arms, to answer for their contempt. Acting under legal advice, they declined to submit to such authority unless compelled to do so by force; and they boldly threatened that in case of force being resorted to they would prosecute the Speaker. It is to be presumed that the warrants would in any case have been acted upon, but this impudent threat left the Assembly no alternative. If Government officers, paid out of the public purse, were to be allowed to defy that branch of the Legislature which alone represented the popular voice—if they were to be permitted to treat its mandates with contempt, and to threaten its representative with ulterior consequences in the event of those mandates being enforced—then, indeed, liberty and equal rights were at a low ebb in Upper Canada. The warrants were promptly executed, the house in which the two officials had ensconced themselves being forcibly entered for the purpose. Being brought to the bar of the House, and charged with their contempt, they sought to vindicate themselves by pleading the action of the Lieutenant-Governor in refusing to sanction their attendance. The House then adopted a resolution under which they were handed over to the custody of the Sheriff, and committed to the common jail of the Home District. They formally notified the Lieutenant-Governor, through his private secretary, of the calamity which had come upon them through obedience to his behests, and requested that the advice and assistance of the Crown officers—that is to say, of the Attorney-General and Solicitor-General—might be vouchsafed to them. They however remained in confinement only three days, for the Lieutenant-Governor, in accordance with an intimation previously given, prorogued the Legislature on the 25th of March—they had been committed on the 22nd—and the power of the Assembly to commit did not extend beyond the time when it was actually in session.

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

Sir Peregrine appears to have felt a little dubious as to how his proceedings would be regarded at the Home Office. It was quite certain that the Colonial Secretary would hear of the affair, but that dignitary's approval was open to question. It would at all events be well that the official mind should receive its first impression on the subject from Sir Peregrine himself, who accordingly lost no time in sending over his own version of the transaction. His despatch, which bears internal evidence of having been written or revised by Attorney-General Robinson, is dated the 29th of March—the fourth day after the prorogation. Under the pretext of asking for advice as to how he should act in the future in case of any of the officials being summoned before Parliamentary committees without any notification having been made to himself, he recounts the story of the Niagara Falls outrage. His narrative, it is almost needless to say, is from first to last garbled and one-sided. Forsyth is referred to therein as "a person notoriously of indifferent character;" and the Assembly and its committees are maligned in language highly improper to be employed in a confidential communication from the Lieutenant-Governor of a colony to his superiors at home.[95] The Colonial Secretary, however, was shrewd enough to penetrate the veil of misrepresentation in which the despatch was enveloped, and to arrive at a pretty just appreciation of the merits of the case. He officially expressed his opinion that there had been adequate grounds for inquiry by the Assembly. "I cannot but consider," he wrote, "that Sir Peregrine Maitland would have exercised a sounder discretion had he permitted the officers to appear before the Assembly; and I regret that he did not accomplish the object he had in view in preventing Forsyth's encroachments by means of the civil power, which is said to have been at hand, rather than by calling in military aid." This despatch, however, was written, not to Sir Peregrine Maitland himself, but to his successor, Sir John Colborne. The Forsyth case, coming, as it did, in the wake of other ill-advised proceedings on the part of Sir Peregrine, determined the Home Government to withdraw him from Upper Canada, where it was quite evident that his usefulness—if he had ever had any—was gone. He was transferred to Nova Scotia, whither it is not necessary that this narrative should follow him.

With respect to Forsyth, it may he added that, being unable to obtain any recompense for the Phillpotts invasion, and being harassed by protracted litigation, he sold his property at Niagara Falls at a price considerably below its value, and removed from the spot. It cannot be said that he deserved much sympathy, for he had brought his losses on himself by his own selfishness. He took advantage of the situation to pose in the character of a martyr to Executive tyranny, and he succeeded in deceiving many of his contemporaries into the belief that he was a much injured man. The historical interest, however, centres not in him, but in the consequences arising out of the employment of soldiers to do the Sheriff's work in a time of profound peace, and without any initiatory civil process having been issued. The popular excitement consequent on the outrage encouraged Forsyth to petition the Assembly. The petition led to the appointment of the Committee of Inquiry, which in its turn led to the summoning of witnesses and the conflict between the Assembly and the Lieutenant-Governor. The conflict led to the latter's removal, and, from that point of view, is not to be regarded in the light of an unmixed evil.

FOOTNOTES:

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

[91] See the report, p. iv., appended to the Seventh Report of the Grievance Committee.

[92] The defence of these two suits would seem to have been the means of considerably augmenting the Attorney-General's already ample income. From certain accounts sent down to the Assembly it appears that a sum of L127 6s. 6-3/4d. sterling were paid to him during the year 1834 for "expenses incurred by him in defending two suits with costs in reference to the military reserve near the Falls of Niagara."

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

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

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



CHAPTER VIII.

THE "AMOVAL" OF MR. JUSTICE WILLIS.

The Forsyth embroilment extended over a long period, and from time to time during several years it continued, at longer or shorter intervals, to thrust itself upon public attention. Meanwhile it was not the only instance of abuse of power on the part of the Executive to which the people of Upper Canada were constrained to submit. Several other notable contemporaneous examples shared with it in the unenviable work of widening the breach between the Government and the people, and in destroying popular confidence in the impartial administration of justice. It is a rather singular fact that of all the many high-handed measures resorted to during the existence of the Ninth Parliament, the one which aroused the greatest indignation was perhaps the least blameworthy of them all. It has been the fashion with writers who have dealt with this period of our history to represent the amoval of Justice Willis as being upon the whole the most glaring iniquity of the time. This view is not borne out by the facts. In the Willis affair Sir Peregrine Maitland had recourse to the espionage system, and certainly went to the utmost verge of his authority, but he cannot be said to have run violently in the teeth of precedent and good sense, as was done, for instance, in the Forsyth case. Nor can it be said that he acted with despotic rashness or precipitation. His decade of misrule in Upper Canada was characterized by many cruel, tyrannical and shameful deeds: deeds which stare out from the pages of the past with lurid distinctness. He has enough to answer for at the bar of history; and it is quite unnecessary to load the formidable indictment against him with surplusage or dubious matter. A careful and 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.

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