Chapter VIII: The "amoval" of Mr. Justice Willis (2)

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 That order he now rescinded, so far as his authority was concerned, and he expressed his regret that he had entered upon the discharge of his judicial functions without having previously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.

The news of Judge Willis's "amoval" spread rapidly through the Province, and produced widespread excitement. The circumstance that his course had met with the approval of Rolph and the Baldwins led to the belief among non-professional people that he was sound on the legal question, and that he had been driven from the bench because he would not stoop to corruption. The case of Judge Thorpe was exhumed from the dust of twenty years, and the amoval of Judge Willis was believed to be a mere re-enactment of that forgotten iniquity. As for Judge Willis himself, he determined to proceed at once to England to present his side or his case, in the form of an appeal from the order of amotion, at the Colonial Office. Before his departure he received addresses of condolence from various parts of the Province. Numerously-signed petitions in his favour were transmitted to the king, and to the several other branches of the Imperial and Provincial Legislatures. A long requisition from a number of influential persons in the County of Lincoln entreated him to represent their constituency in the Assembly. People who were usually sensible appear to have lost their heads for a time during this exciting period. A large meeting of the Judge's sympathizers was held in Toronto, at which Dr. Baldwin and Mr. John Galt,[111] with their wives, were appointed a Committee to watch over the interests and insure the protection of Lady Mary and her family during the absence of her lord; and Robert Baldwin was added to the Committee as her Ladyship's solicitor.

Judge Willis took his departure from York on the 11th of July. As he expected that he would very soon be able to procure from the Colonial Office a reversal of his "amoval," and that he would be reinstated in his judgeship, to the great discomfiture of the Lieutenant-Governor and his satellites, he did not think it necessary that his family should accompany him to England. The suitable disposal of the members of his household was an embarrassing problem for him. In good sooth, he was in a situation somewhat analogous to the man in the familiar old story, who came to the bank of a wide stream, having in his possession a fox, a goose, and a bag of corn. The application is easy. Mrs. Willis and Lady Mary could by no means be left to keep house together unless the head of the establishment was near at hand to keep the peace between them. The relations between Lady Mary and Miss Willis, though far from amicable, were somewhat less strained. Mr. Willis accordingly took with him his mother only, leaving his wife, child and sister behind him; though it is to be presumed that the above-mentioned Committee had a sinecure, so far as any special attendance upon or protection over Lady Mary was concerned.

A series of acrimonious despatches from the Lieutenant-Governor preceded Mr. Willis across the Atlantic. For weeks--probably for months--before the delivery of his unfortunate decision, the espionage system had been put in full operation against him, and measures had been taken to watch his personal habits and pastimes. There had been a firm determination to effect his ruin,[112] and the strong suspicion that such was the case had done much to array a majority of the inhabitants on his side. "It is my duty to state to you in the most decided terms," wrote Sir Peregrine Maitland to the Colonial Secretary, on the 6th of July, "that his [Mr. Willis's] restitution to office, while it would be received by the most portion of the population as a triumph over the Government which Mr. Willis has ungratefully and wantonly insulted, would be most pernicious to the peace of this colony, and an act of the most aggravating injustice to those faithful servants of the Crown against whom he has, for unworthy purposes, dishonourably laboured to excite the prejudice and hatred of the ignorant and malicious." It is worth while to note that this extract contains a clear admission by the Lieutenant-Governor that his Government was regarded with disfavour by "the most portion of the population:" an admission directly at variance with many statements made by him in former despatches, as well as in speeches to the Provincial Parliament.

Upon reaching England Mr. Willis put himself into immediate communication with the Colonial Office. He took up his quarters at the house of his brother, the Reverend W. D. Willis, at Bath. There he prepared an elaborate statement of his case, which was duly forwarded to the Colonial Secretary. After some delay he 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.