The Story of the Upper Canadian Rebellion, Volume 1

by John Charles Dent

"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]