The Story of the Upper Canadian Rebellion, Volume 1

by John Charles Dent

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.

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."