Note 96 — Chapter VIII

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.