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