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

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