The Story of the Upper Canadian Rebellion, Volume 1

by John Charles Dent

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 mediævally-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-manœuvred. 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.