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

succeeded in obtaining copies of the several despatches of Sir Peregrine Maitland in which the charges against him were formulated with wearisome reiteration. These indictments against him, which, though signed by Sir Peregrine, were doubtless in reality prepared by Mr. Willis's arch-enemy, Attorney-General Robinson, were certainly of the most formidable character. They went over the whole course of the Judge's procedure, from the time of his arrival in the Province down to his departure therefrom. To the serious grounds of complaint which had unquestionably been given were added numerous delinquencies of the most petty and trifling nature. It was stigmatized as "a great indecency" that Judge Willis had been seen in a dress "but little according with his situation."[113] In view of the interests involved, and of the grave nature of the questions to be decided, it seems ludicrous that the appellant should have been called upon to reply to an accusation of this nature.[114] A perusal of these despatches, however, rendered necessary a supplementary statement and narrative, wherein every count in the indictment was either traversed, or, in legal parlance, confessed and avoided. But Mr. Willis soon found that he was not to gain so easy a triumph over his enemies as he had previously allowed himself to suppose would be the case. The question to be decided was a purely technical one, and after the matter had been for some time under consideration at the Colonial Office it was referred for decision to the Privy Council, where it was not disposed of for nearly a year. The conclusion finally arrived at was that Mr. Willis had been wrong in his view of the question in dispute, and that the Executive Council, in amoving him from office, had not acted in excess of their authority. Under such circumstances his return to Upper Canada was of course out of the question; but as his conduct was attributed to error of judgment rather than to any serious dereliction from duty, he received an appointment to a judgeship in the South American colony of Demerara.
From all the circumstances, then, it is clear that Judge Willis, though he was in some sense a victim of Executive intolerance in Upper Canada, was himself largely to blame for his downfall, to which he contributed by his want of caution and calm good sense. But many of the circumstances detailed in the present chapter were unknown to the bulk of the Canadian people, by whom he was regarded as a martyr to his upright and liberal principles. His amoval produced a wider excitement than any event since Gourlay's time. It tended greatly to embitter public opinion, and was unquestionably a strong factor in producing the discontent which ultimately found expression in open rebellion. For this reason it has been thought desirable to go somewhat minutely into details which are in themselves fraught with instruction, and as to which the people of Canada, even at the present day, are very inadequately informed.
[Sidenote: 1829.]
Mr. Willis felt his defeat very keenly, more especially as he had confidently looked forward to a successful termination of his appeal. At his instigation the subject was brought before the attention of the House of Commons by Lord Milton, on Tuesday, the 11th day of May, 1830.[115] Sir George's Murray's explanation, which involved a narrative of the circumstances in detail, proved satisfactory to the House, and the matter was allowed to drop. But the amoved Judge was fated to have greater reasons still for deploring that he had ever taken up his abode in Canada, as his residence there led to the rupture of his family ties and the total wreck of his domestic happiness. It will be remembered that Lady Mary and her child, together with Miss Willis, had remained at York. Upon learning the decision of the Privy Council in his case, Mr. Willis wrote to his wife and sister, requesting them to dispose of his house there, and to return home as speedily as possible. During the long interval which had elapsed since the ex-Judge's departure for England, the two ladies had been left to amuse themselves as best they could in the little capital. They occasionally went into society, and received a certain amount of attention from that portion of it which had been favourable to Judge Willis, as well as from some of the military officers stationed there. Among others whose acquaintance they formed was a certain Lieutenant Bernard, an officer of the 68th Light Infantry, whose regiment was then in Canada. He occasionally rode out with Miss Willis, who was an accomplished equestrienne, but he did not appear to be on specially intimate terms with Lady Mary. On the 16th of May, 1829, Lady Mary set out for England by way of Montreal, Miss Willis remaining behind for a week to make a final disposition of the house. On reaching Kingston, Lady Mary was met by Lieutenant Bernard, who accompanied her to Montreal, whence the pair several months afterwards fled together to England, Lady Mary leaving her child behind her in the care of one of her maids. Mr. Willis brought an action against Bernard, who had by that time succeeded to a Captaincy. The case was tried in the Court of Common Pleas at Westminster on Thursday, the 9th of February, 1832, when the plaintiff recovered L1000 by way of damages. A report of the proceedings will be found in _The Times_ of the following day.[116]
[Sidenote: 1832.]
It may be of interest to Canadian readers to learn that Mr. Willis was some years afterwards appointed to a seat on the bench of the Supreme Court of New South Wales. On the 8th of February, 1841, he was under a local statute appointed resident Judge for the District of Port Philip. While officiating in that capacity he came into conflict with Sir George Gipps, Governor of the Colony, and the Executive Council, by whom he was once more "amoved" from office. The order of amotion, which was made on the 17th of June, 1843, was however reversed by the Imperial Privy Council for irregularity. The Lords of the Judicial Committee, before whom the case was heard in June and July, 1846, reported that in their opinion the Governor-in-Council had power in law to amove Mr. Willis, and that the facts were sufficient to justify his amoval, but that an opportunity ought to have been afforded him of being previously heard. The requisite notice not having been given, the omission was held to vacate the order of amotion, and judgment was rendered accordingly.[117]
FOOTNOTES:
[96] See his "Narrative of Occurrences in Upper Canada," written from Bath to the Secretary of State for the Colonial Department, dated 5th December, 1828, and included in pp. 273-288 of the blue book on the subject issued by the Imperial Government in 1829.
[97] There is a covert irony in the portion of Judge Willis's _Narrative_ which refers to this subject. "I wished to think," he writes, "and from the attention he seemed to pay to business I actually worked myself up into the belief, which I frequently expressed, that Mr. Justice Sherwood was a _hard-headed_ sensible man; but I became convinced that, though right in the former conjecture, yet so far as legal knowledge or abilities were concerned, I was mistaken in the latter part of my conclusion." The italics are Judge Willis's own.
[98] See Judge Willis's _Narrative_, ubi supra.
[99] So far as mere diction is concerned I have here chiefly followed Collins's own report of this episode, as published in the _Freeman_, but I have also before me the Attorney-General's account, as well as the more elaborate one of Judge Willis himself, and the three do not materially differ in this respect.
[100] _Ante_, p. 13.
[101] The _Freeman_, April 17th, 1828.
[102] The case, as put by the Judge, was purely hypothetical. "_If_ the Attorney-General has acted so and so, he has neglected his duty." See _ante_, p. 174.
[103] The announcement ran as follows:--"Preparing for publication.--A View of the Present System of Jurisprudence in Upper Canada; by an English Barrister, now one of His Majesty's Judges in this Province.--_Meliora sperans._"
[104] It was time for some one to undertake the duty of ameliorating the criminal law of Upper Canada, which was that of England as it stood on the 17th of September, 1792, except in so far as it had been altered by subsequent legislation. At the Assizes for the Home District, held at York in the autumn of 1827, within a few weeks after Judge Willis's arrival in the Province, a boy was capitally convicted and sentenced to death for killing a cow.
[105] _On the Government of the British Colonies._ London, 1850.
[106] The investigation, according to Judge Willis's own testimony, was entered into partly in consequence of a suggestion which he received on the subject. See the text of his written opinion, embodied in pp. 66-74 of the Imperial blue book issued in 1829, entitled "Papers relating to the Removal of the Honourable John Walpole Willis from the Office of One of His Majesty's Judges of the Court of King's Bench of Upper Canada." It seems probable that the suggestion emanated from Dr. Baldwin.
[107] 34 Geo. III., c. 2. This statute was framed by the Hon. William Osgoode, first Chief Justice of Upper Canada, a gentleman of great learning, who had been sent out from England for the express purpose of organizing the Courts of the Province.
[108] 2 Geo. IV., c. 1.
[109] See pp. 249-267 of the Imperial Government's blue book on the subject, _ubi supra_.
[110] The notification was dated the 26th of June, whereas the formal document issued by the Council was not signed until the 27th. Mr. Willis attached a good deal of weight to this irregularity, which however was of less importance than might at first sight be supposed. The Council had fully made up their minds on the 26th, and the notification was despatched accordingly, though the order of amotion was not actually ready for signature until the day following.
[111] The well-known author, who was then in Canada as representative of the Canada Land Company.
[112] "Cabot," in _Blackwood's Magazine_ for September, 1829.
[113] See despatch marked "Separate," from Major-General Sir Peregrine Maitland to Mr. Secretary Huskisson, dated 6th July, 1828.
[114] His reply will be matter of surprise to the staid and decorously-attired judges of the present day. "On all ordinary occasions," he wrote, "I usually wore a _black velvet coat and waistcoat_. The first time I saw the Chief Justice he had on a black kalimanco or camlet jacket, which I have seen him wear even on the bench. I have met the Lieutenant-Governor frequently walking through the streets with an olive-coloured square-cut velveteen jacket and waistcoat; and a few days before I left York I beheld Mr. Justice Sherwood in a grass-green cloth jacket with white metal buttons. I merely mention these 'extravagancies' to show that my dress was neither improper nor extraordinary."--See the _Narrative_, ubi supra.
[115] See Hansard's _Parliamentary Debates_, N. S., Vol. xxiv., 551-555.
[116] Some further particulars may be found in 8 Bingham, 376; also in 5 C. & P., 342.
[117] See the case of John Walpole Willis, Appellant, _versus_ Sir George Gipps, Knt., Respondent, 5 Moore's Reports of Privy Council Cases, 379. From an _obiter dictum_ of one of the judges in the case it would appear that the order of amotion from the bench of this Province was finally set aside on technical grounds, owing to the appellant's not having been heard in Canada. After diligent search, I have been unable to find any report of this decision, either in the official reports of the Privy Council or in any of the newspapers or periodicals of the time.


CHAPTER IX.
THE CASE OF FRANCIS COLLINS.
In the foregoing pages mention has several times been made of Francis Collins, editor, proprietor