The Story of the Upper Canada Rebellion, John Charles Dent [read a book TXT] 📗

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