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Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 I w^w-mmjuM T f\ titt* I P A F E R S (lEIATIVC Id THE REMOVAL OF .. »f 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. J 829. .-iiffl AAA aA^;' 7 J <^^j^ / > DEC >> 24 1952 ^'i ^^^-•■'^ LIST O F PAP K U S. I'aut I. No l"-4:opv of « Dispatch from Major (ieneral Sir Peregrine M.itland lo Mr. Secretary Huskisson ; dated Yorli. Upper Canada, GtliJ line IH'iS.— Nine Iiiclosure». . - - - 1. Letter from the Hon. Jnstice Willis to .). Stephen, juii. Esq. ; dated York. Upper Canada, 30th May 1828. - ■ - ■ " " 2. Letter from the Hon. Justice Willis to the Secretary of Siato for the Colonial Department; dated 31sl May 182H. - - ■ ' 3. The Hon. Justice Willis to Major Hilher ; same Date. . . - 4. Major Hillier to the Hon. Ju.stice Willis; :id June 1828. .'i. The Hon. Justice Willis to Major Uillier ; same Date. 0. Major Hillier to the Hon. Justice Willis ; Ith June 1828. 7. The Opinion of J. H. Uobinson, Es<,. Attorney (ieneral, and H. J. Houlton, Ksq Solicitor General of the J'rovince of Upper Canada as to ""-■,»-;"--^''"". "' ,;'' equitable Jurisdiction and the Ai)pointment ot a 1 hird I'ms.u' Judge^ in that I'rovince. - - " " " H. Copy of a Judgment delivered by Mr. Willis in the Court of King's liench of Upper ('anada. - - " " " 9, The Hon. Justice Willis to Major Hillier ; .5th June 1828. - id to Mr. Secretary Huskisson ; PllgC 5 8 ibid. <» ibid, ibid. - ibid. II 14 2.—' ■Copv of a Dispatch from Major General Sir Peregrine Maitlanu , dited York, Upper Canada, 2t)th June 1828.— Eight Inclosures. - - -'bm. 1. The Hon. Justice Willis to the Lieutenant Governor ; dated 12th April 1828. - 2. The same to the same ; dated 14th April 1828. - - ■ " 3. Statement of the Attorney General of the Province, in answer to a Reference made to him by the Lieutenant (iovernor ; dated 20th May 1828. 1 Report of the Attorney General to the Lieutenant Governor upon the Matters referred to in Mr. Justice Willis's Letter; dated 10th May 1828. - .f). Extract from the Canadian Freeman of the 3d April 1828. - - • f). Statement of Facts relating to the Trespass on the Printing Press in the Posses- sion of Mr. W. L. M'Kenxie, in June 1826. - . - - 7. A Contradiction of the Libel, under Uie Signature of " A llelative," published in the Canadian Eieeman of 28th Feb. 1828. . . . - 8. Letter from the Right Honournjle Earl Hathurst to Major General Sir P. Mait- land; dated 1 ith May 1819. - - - " " 3 —Copy of a Dispatch from Major General Sir Peregrine Maitland to Mr.Secretary Huskisson ; dated York, Uppe, Canada, 6th July 1828.— Nineteen Inclosures. I. Order of Reference laid before the Council 18th June 1828, with Documents Nos. l.tolO. 13 ibid. 16 23 33 36 48 62 62 63 64 (1.) Mr. Justice Sherwood to the Lieutenant Governor, respecting Pro ceedings in the Court of King's Bench ; dated 16th June 1828. (2.) (3.) (4.) (5.) (6.) (7.) Letters between Mr. Justice Willis and Major Hillier. ''^' "'' (8.) (Jpinion delivered by Mr. Justice W His in the ( ourt of King's Bench, 16th June 1828, upon the necessa-y Constitution of that ( ourt. - (9.) r.Iemorandum of Deputy Clerk of the Crown. . - - (10.) Application made by Dr. Baldwin am' others, relative to the State of the Court of King's Bench, 17th June 1828. . - . - 2. Report of the Executive Council of Upper ( aiiada, respecting the Circumstances which have occurred in relation to tlieCourt of King's Bench in that I'rovince. 3. Opinion of J. B. Robinson, Attorney General, upon the legal «uestions involved therein. ...... ...--• 4. Opinion of H. J. Boulton, Solicitor General, in respect to giving Leave of Absence to anv Orticer. - - - - - - A <2 liCi 74 ibid. 84 'J'J I f I i ( + ; No .. K,irari lr.,in Ih, .M„|o,l) , li.,irmlioi.s lo Nr.l.f.Slierbrook.G.C.B. Liculoimnl "• '"=»" f™!" 'y--- ''f""'"" Hus>i»»"H* •>. ( om».i,si,m to the Ho„. I'eter Ku.ssell, lo sit as a I'ui8n(:- Judge duriiiK the next t;i.Hter Term ; dated lOth Nov. 17<»:.. . . ^'■""""K"'^ ""' 1 ( ...nmissio.. to the Hot,. I'eter Hussrli. to sit as a Puisne Judge during the nexi Hilary lerm; dated 1 7tb Deeeniber 1 7>)7. . b<- <'»nng uit ntxt I I. Statement of the Na.nes of the Judge, of the ( uurt of King's Bench actually presem in ( oiirt at the several Terms since its Conslilulioii. - . . 12. ( o,,y of a Letter from the Hon Mr.JusticelWell to his Excelleticy Lieutenant {.overnur (.ore, respecl.iig Uemunerntiun for Services perfonned in the Absence of Mr. Justice I horpc : dated KUh August 1H09. i;i. Opinions of the Attcrney General and Sol citor General (I ;.C.) on a Disnateli rom Karl Uathurst respeclmg the Ap, ointment of nn additional or Third ruiMie Judge; aOlh January 1828. - . . . 1 I. Cp-H-n Officers' Ueport as to the Removal of Officers ; I Utli June 182«. - - ir.. ( "py "f a I-etler from the President of the ( ouneil to Mr. Justice Willie ; xflll Jlllll' lojo, " " « > l(i. , Mr. Justice Willis to the President of the Council. 17. The President of tlie Council to Mr. Justice Willis ; 2Gth June I82S. IS. Mr. Justice Willi, to the President of the Council. .... III. Opinion of the Hon. Mr. Justice Sherwood; 2-)th June 1828. •I.-Copy of a Dispatch, marked "Separate," from Major General Sir Peregrine Maitlanu to Mr. Secretary ilnskisson; dated Gth July 1828.— Six Indosurcs. . ""™"' '^ ' ■ ^^'hTJZ tl ^l^"^'"'""' ^'"\' , A' 'orney General U. C. on the Progress and dated 12lhMa^~ ^"T *'" "'»'''["""« '"' equitable Juritdiction ; 2. Message from the Lieutenant Governor to the House of Assembly, and Docii- inents accompanying the same, relative to the Establishment of an eouitoble JurisdutKUi. - . . iM..«.^.«> I'w.- III! U\'2 ibid. Klli ibid. 107 ibid. 117 ibid. UK II!) ibiil. 120 ibid. 121 12H i;i9 Extracts of Dispatches to the Lieutenant Governor on the same Subject. l39, HO Hepori of the Cl,i>..f Justice and Mr. Justice Sherwood, on the Method ' ol carrying the above Object into Execution. - . -Ml Letter (rom Mr. Justice Willis to Major Hillier, with Report on the same Subject. - - - . Report of J, B. Robinson, Attorney General. - . . . Report by the Solicitor General. .(. Draft of an Act to confirm and establish an efficient Court of Enuitv in the Province ot Upper Canada. — By Mr. \Villis. . . .' •1. Answer by Mr. Justice Sherwood to a Question proposed by Three Members ol the Bar, on the Constitution of the Court of Kings Bench. .'■.. Draft of an Act for establishing an equitable Jurisdiction, as submitted bv the Attorney General. ..... / ~- fi. Letter from Alajor Hillier to Mr. Justice Uillis, dated 27th June 1828, acquaintiiiLr him that the Executive Council have recommended his Remov '. from Office. Part 1 1. Letter from Sir Peregrine Maitlan.l to .M,-. Secretary Huskisson (marked " Civil Servants") : dated Vork, Upper Canada, 21st Jidv 1828. - . . . " '" ' • 113 . 4 MH H!) ibid. 1.>I U3 Paht III. I !.-( opy of a Letter from Mr. M'illis to the Secretary of State for the Colonial Department : dated\ork. Upper Canada, 21st April 1828. - . »■ ^ pur meni ^ ^^^ "■~*^"2-lsrAp'riM828. '^'""' ^.^'' ^^'"'f '" "'' "' "^^^ "">' ' '^"'"^ ^'°''^' "P''" ^''"'"'''' Now ( >'! ) (III ni'j iiiiii m, ibid. - 117 rd - ibid. - IIH ■ II!) • iliiil. - 120 ' (bid. - rji IM 171 I7H '•f '■"^"!Jl/ApriM"2H/'"'"/'''.^'''''.''' ^»'«-;V.Horto„i dated York. Upper C-.n.d.. '■"^"SurLril^Tfi '""" '^''■"'""" "■ ^*'' ^•'"'"'= ''"'•' ^''"''' "PI'*' f^«n«d«. ' " ■ - - 174 i.-( o,,y Ola Letter from Mr. Willis t, rhe Serrttary of Mate for the tolonia! Departm.nt ; d.iled^ork, l,.,)er{tti.;ul«, i-iil, ApnllH2H— Onelnclosure. - . '_'"""; ,.j^- ''■""''uh'Ma,''!"^'^ '^""".""•' "'"'■ ^''•^^'""' '" '^''-"^^^"''^y Husl !"■""-' ""^"'"^'y "^ ^"'"' f"' 'he Colonial Department ; dated York. Upper Canada, J3d June I H2H.— Ten Inclosures. . - . i;(i 1. Mr Justice Willis to the Lieutenant (iovernor, on the Subject ol I'ublic Prosecutions; dated I'.'th April Ih'.'H. . - . . . ps 2. Circular from J. W. Robinson. Attorney (ieneral, on the same Subject. - 179 3. Keporl of the Se\i:c\ Cominiitee to whom was referred the Petition of W. Kornyth, with ihc Lvidence uken thereon. - - . . . . i^O ■)..">, C, 7. Letters of Mr. Justice Willis and Major Hillier - . 186,187 K. Letter from W. W. Baldwin, E.sq.. to his Excellency the Governor, on the ' intended Absence of the (hiif Justice ; dated 7th April 1H28. With KcdIv '''"«'" - - '-.18^ y. Opinion delivered by Mr. Justice Willis on the ( onstitution of the Court of Kinc s "inch. - . . . . ,■- 10. Statement of the Names of the Judges of the ( ourt ,-ictually present at the several Tcims since its Coiistiliitioii. - . . . . |,)- '''~^°^Ui * ^""^ '"'■'"" ^''■- "• ^^- ""y '" ^^'- ^^''"''' ; ""'"I Downing Street. 30th July 13,-Copy of a Letter from .Mr. Willis to Mr. Stephen ; dated York, Upper Canada, 30lh June '^^•^ ibid. 14.-(;opy of aLetter from Mr. Willis to Mr. Secretary Huskisson ; dated York. UpperCanada, Ist July 1828 — fwenty-two Inclosures. . . lyi l.^.-Copy of a Petition from Mr. Willis to His Majesty ; dated York, Upper Canada. 1st July '"^^ - 200 16.— Copy of a Letter from the Rev. Mr. Willis to Mr. R. W. Hay j dated Bath, 4th July 1828. 201 l7.-Copy of a Letter from !M.-. Willis to the Secretary of State for the Colonial Department ; dated Liverpool, 7th August 1828.— Two Inclosures. - . . . 202 1. .Address to the Honourable John Walpole Willis. ... . - 203 2. Petition to the King's most Excellent Majesty, and to the several other nranches of the Imperial and J'rovincial Legislatures. - . . . . ibid. IH.-Copy ol a Letter from Mr. Willis to the Secretary of State for the Colonial Department ; dated London, 13th August 1828.— Two Inclosures. . ... ■.>07 1 y— topy oT a Letter from Mr. R. W. Hay to Mr. Willis ; dated Downing Street, 20tli August '^^^- • - - ibid. 20.- Copy of a Letter from Mr. Willis to the Secretary of State for the Colonial Department ; dated Bath, 26th August 1828— Five Inclosures. - - ... 20>s '' '^''■•.^"''''^'^^^'"'^"''''sExcellency the Lieutenant Governor; dated 12th April 10 2. Mr. Justice Willis's Statement of what passed in (ourt at the Spring Assizes respecting the conducting of Criminal I'roce'dings. - . - 211 3. Report of the Select Committee to whom was referred the Petition of W.Forsyth. 1 80 4. Circular from Mr. Robinson. Attorney General. . . - 179 5. Contradiction of the Libel under the Signature .,f •■ A Relative." published in the Cr.nadiau Freeman of 28th February 1828. - . - 216 ^'■"^Trnter^S'' '^""" '■«'■«• W. Hay to Mr. Willis ; dated Downing Street, 5th Sep- - 2-10 * -^ * A A A A ^! i ^ i. No. 22.. 26.- ■J7.- ( « ) -Copy iifn Letter Iroiii Mr. Willlt tu (lie ^C(rl•lilry ut .Siiitr lur llu ( oliiiiiul I>i'|iiiriiMt'iit ; limed B.itli, dill Septi'inbtT 1H;'H. • ' - -( o|iy of .1 Letter from Mr. K.U'. Ilnv In Mr. Willis i iluteil Downing Street, Hth Sejjleinliet 1828. — One Incluvure. .... - • . . -( iipy of a Letter from Mr. Willin tn the .Sccretury of State fur the Coloninl Department ; iliittil irnli Si'ptiiiiher l«2rt. - - -' I -< i>pv of !i Letter from Mr. H.W. Hiiy to Mr. Willis; dated Downini; .Street, 15th September IHJN. ........./. -('ci|iy (if 11 I,etiir Irnni Mr. Willis to the Secretary of State for the Colonial Departinent ; diiled Kith .Vptcmbir IH'.'S. . . > [ -< opy of tt I^ellcr from .Mr. Willis to Secretary Sir George Murray ; dated liath, a^th .Sep- tember IH2H. — Five Iiiclosures. - . . . . . . 1. Answer to the ( hurgcs conuiined in the Kepori of the Executive Council. (Su- Ihr Sirii'H nj' Off/iiiiil I.itlirs iinii rtiiiumeuh jtuhluihed Inj Mr. H'itlii.) 2. Mr. Justice Willis to Major Hillier; dated -'8th June 1828. ;». .Major llillier to Mr. Justice Willis, 2d July 1828. - - . . ■1. .Mr. Justice Willis to Major Hillicr; Hih July lh'28. - - . . .'>. Address of th.- Inliubiiaiiis of the Township of Brock, U|)per Canada, to the Hon. J. W. WiJis. ---.... •'•It- .' Ill 211 ihi.l. 212 ibiil. ibid. 214 ibid. • 24.'. 28.- 29. • •iO.— ' -Copy of a Letter from Mr, H. W. Iliiv to .Mr. Willis ; dated Downing Street, Ist October 1628. - - - . . . -Copy of a l/ctier fnnii Mr. Willis to ilie .Secretary of State for the Colonial Department ■ dated limb. 2d October 1828. - . - . . 1 ((ipy of a Letter froui Mr. H. W. Kay to Mr. Willis ; dated Downing Street, 3d October 1829. -----•■_ --•.. 24(i ibid. 247 II I Part IV. (opy of a Letter from .\lr. Willis to the Secretary of State for the Colonial Department • dated Hath, 5tb December 1828. - . . . , ' Reply to the ( barges contained in the Dispatches of .Major General Sir Peregrine Maitland of the Dates of the (ith June, 26th June, and 6lb July Documents and Papers annexed to the Reply : — {¥.) Stiitement respecting the Kstablishment of aCourl of E^juity in Upper Canada. (G.) Narrative of Occurrences in I'pper Cancda. - - . . Resolution of the House of Assembly respecting Rent for the Hospital. Extract from the Observer Newspaper, 17. C., ."ith May 1828. . . . C;anadian Freeman Newspaper, U. C, 8th May. Observer Newspaper, U.C., 12th May. - - . . Goi.! (iazette, 17th May. - - - . Viewof the Slate of the Jurisprudence of Upper Canada (MS.) . . . All anonymous Placard. - ...... Extract from the Kingston Chronicle, 28th June. . ... - - - - - Gore Gazette, .5th July. - . - . . - • - - • Hathurst Independent Examiner, 20th August. Loyalist Newspaper, 2d .\ugusl. .... . . Canadian FVeeman Newspaper, 10th July. .... Canadian Freeman N^-wspaper, 21st August. - . 249 ibid. 267 27.3 289 ibid. 290 292 304 308 319 321 325 329 331 334 343 • •'•n- ( 5 ) .' Ill ihi.l. Paht 1 1 •.'■fj - ihiil. iliiil 21-1 Ibiil. .M(i ibid. .>49 - ibid. 267 27.1 289 ibid. 290 292 304 308 319 321 325 329 331 334 343 No. 1. COPY of a Dispatcli from Major (iciieral Sir I'k.iii;(;uink Maitland to Mr. Secretary IIuskisson ; dated York, Upper Caiiaila, ) In f'ni'i, I'roiii viiridiis Casualtits nml CirrumManpes, the Court his luvu ranly Cull (rom the Year 170 1-. I lu'lii-vf I am satf in snifiii;?, that iliiriiif,' the uriatfi Tait ol' that IVrioil a ('!iiit' .liistico i-iul One J'nisui' Jiidfje, or Two •'nisnr .liiiitjes without a ChitC. lustier, liave happened to compose the Bench. Mr. ()sj,'oo(le ami Mr. Powell sat alone Point of Law woulil be uniit)])ortant. 1 cannot but wish I could persuade mvself that Mr. .Justice Willis docs actually contenijjlate with llegiet the proba'ble Excitement which he seems to think will follow the Course of I'rocceding which he has announced to you. It is with Pain I am coiniielled to observe, that having jnesided as a Juih>e for the lirst Two Terms after his Arrival, without finding more Occasion timii all the respectable Judges who have preceded him to make the Administration of Justice subservient to jiopular Excitement, Mr. Willis has been cither unable or unwilling within the last few Months to avoid making his Proceeding's, either in the Civil or Criminal Coi:rt, the prominent Subject of political Discussion and the Pretence of Attacks from the vilest Quarters and of the grossest Kind' upon those who were associate(i with him in the >i.'-iinistration o*' Justice, and of whom I shall speak only justly wh' i I say, that .le Measure of Respect and Lstc ,. m which thei.- Public Conduct has ever hitherto been held, and is now held, by their (iovernment, and by every Person except by Mr. Willis and l)v 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. I feel that I ought not, in Justice to those whom it is my Duty to protect to suffer a System to be pursued without Remark, wliich is injurious alike to the i)ubhc Feeling and to the Character of the (iovenmicnt. The Attacks which, springing from Mr. Willis's Comments and Proceedings in Courts of Justice, form the principal Topics of the most contemptible Newspapers cannot, without a Forfeiture of Self-respect, be repelled through the Medium of the iubhc Press by the Gentlemen against whom they arc directed I approve of their submiUing to the most aggravated Misrepresentations of their Conduct and Statements, rather than involve themselves in Discussions dis creditable to the Public Service; but I rely with them that the King's Govern- ment svill see and feel the Justice of examining into the Foundation of such Attacks, and the Necessity of saving them in future from the painful Situation of having to sustain themselves against unfounded Imputations, suggested and t liii-i Ik'i'ii (liiriti^ the 1^0, or Two till' Hfiich. rt was con- Ir. 'Ihorpt', r. (';:mi)l)fll tTcfi/i-f not * from tilt' uiul of tl^e f the King's ed a more iniinncatioii le Atlantic, he ("hance, to you or ve Council, a Situation iitry caimot iteri'il. wn Ollicers fully with ' a bearing the Crown rst, when it I'rox'incial uil, IS tiiat that I can V Point of Willis docs e seems to ed to you, I Juilge for on than all Ministration tlicr unable ings, either Discussion, jssest Kind 'istice, and 'espect and and is now His and by nd who are ? Period of to protect, IS alike to he Attacks Courts of ewspapers, le Medium irected. I ns of their issions dis- ;'s Govern- on of such il Situation suggested and ( 7 ) anti coiintinanceii by thime who are bound l<> concur with thorn in an indcpen dent anil iirni Discharge of I'ublic Duly. Mr. \Villi> has been a (iw Monllis o-ily 'ii t\m Colony. Froin myself, and, I am convinced, from every Member of this (ioveriHnent, he li.is received e\erv Justice. In the Hrst Cause ever tried by him he began an K\cite,nent,to wliicli our Courts of Justice liad never before given Occasion, by rroccdings which have been alreaily lelerrcd to your t isideration. He had himscit been attacked by no Pcrsvin ; luit yet, not content with making an Appeal to the (lovernmcnt, he concluded, to my Regret and Astonishment, a solemn .ludg- ment of his in a Civil Suit in t!ie Words which 1 have extracted, ;mil liir which I can conce.ve no jiossible Occasion, the Cause being h;: at.'ivil .vction, wholly free from p. ''tic.il Considerations, and Mr. Willis, up to that .Moment, not having been I'udc the Subject of such Remarks '" the rublic Papers as the Progress of Disiiission upon smcIi novel Proceeding., luis since lid to. I confess I do not see I'.vidence of a Disinclination to popular lv\citcment in the l.:in"Uiige of tlmt Charge j iior can 1 think it eithei discreet or delicate in Mr. XV'iilis, at this Moment, when he has been but a few Months in the I'roviiice, and while he is a Judge upon the Hencli, to advertise in all tlie Pa|)ers in this Colony, and even in Newsj apers of a l-'oreign Country, from which 1 extract the Notice*, of ■•) intended Aix'ount ot Canadian Jurisprudence, iislier'd in by so signiHcanl and unpromising a Motto as he has selected. 1 have been Ten \ ears in this (iovernment, and as I have never received anv Rcii.Osentatiou igainst the I.aws, or the Manner in which tlies have been administered, I must co.iclude that the Pt ople are content with oolh ; that Contentment is of all Tilings most important to the Public Peace and the Security of the (jovernment ; and the Judges of the Land, I must think, are the last Persons who slioulil ein|iloy the:nselves in disturbing or iinder- niiniug it. I have the Honour to be, Sir, T.. tl.- Hi. rton. W. H.i.ki,,..,,, M. I'. '^''>"'' ""»^^ "bedient humble Servant. &r. fir. f-t c.iuail.i, ;)imIi .M^y I8j,s. I ii.vvF, fell it my Duty to inform His Majesty's Secretary for the Colonics, that, in my Opinion, the Court of King's Heneh, as fslafilisficil lirre, cannot legally sit in Hank, unless " the Chief Justice, together with the Two Puisne " .Justices of the Province," be present. I have coniC to this Conclusion in consequence of a minute Investigation of the Constitution and Power of the Court ; wliicli I have beei.> led into on account of the serious Evils which may arise i'-om the very freipient Difference of Opinion ex()iessed by my Colleague and myself in the Course of the last Verm, the Chief Justice being absent on Leave. The general Prai-tice hitherto has been oftentimes for Two and sometimes for One only, of the Judges to sit during Term ; and I must admit that I have so far followed this Doctrine of my Brethren, before I had sufficiently enquired into its Correctness, as ''requently, when requested, to sit without a full Bench. The Provincial Statute of the 34. Geo. y. c. 2., which establishes a Superior Court of Civil and Criminal Jurisdiction, and regulates the Court of Appeal in this Colony, declares by the First Section, " thai His Majesty's (Jhief Justice, together with Tv/o i'uisne " Justices, SH.ALL pres'de in the said Court." All the subsequ'ril Sections, with the Exception of those relating to Appeals, which are limited to Matters exceeding .i 100 (Matters which but rarely occur here), are repealed I y the Provincial Statute of '2 Geo. 4. c. 1. ; and although Power is given to the senior Puisne Judge, in the Absence of the Chief Justice, to teste the Process, and for • Preparing for Piibliciilioii. — ''A View of the prtatiit ::>yateiii of .Turisprudence in Upper Canada ; by an Eni;li>li Barrister, now one of His Majesty's Jiidiffs in ilie I'mviiKc." — Meluirn Sprram. ANY :li aaaAA**^- • I ( ) ANY of the Judges to sit at Nisi Priii.i, yet there i'^ no Authority given to the Judges to sit in lianco, unless tlie Court be full. I need not point uut to you tiie DiHerence between this Statutory Court and the Superior Courts of West- minster Hall, whicii sit by Prescription, and are said to consist of a Cliief Justice, &c. I will only call your Attention to a Court of the highest Jurisdiction in Kngland, with the Exception of the House of Lords, I mean the Excheciuer Chamber as first erected by the Statute of 31 Kdw. 3, c. 12., and the Necessity which appe:irs, from subsequent Statutes, ot' all the Judges named in the original Act being present, in order to transact the Business of the Court. Indeed it has been held, where certain Persons were alone appointed Judges by Act of Parliament, and were to call others. to their Assistance, yet even if tfie Assis- tants were not called, as directed by the Statute, it wouhl be Error. — See Trin. Abs. tit. Judges, (G.) I will not trouble you by alluding to the Writ of Si non omiics, which always, by way of Precaution, accompanies the Com- mission of Assize and Nisi J'rius. The Evil of a Division of the Court here, in those Cases where there is no Appeal, is obvious. In England, in case of a Division, there are Two other Courts, the Exchequer Chamber and the House of Lords, to resort to. I think it my Duty to mention this Matter publicly when the Court re-opens on the 18th Inst., though I fear it will be productive of great Excitement; for if I be correct, all that has or may be done without the Court being lull is invalid. Believe me, ike. &c. To J. Stephen, jiin. Esq. (Signed) JoHN WalPOLE WlLLlS. Counsel to the Colonial Department. I hope yon handed over my former Communications for Mr. Hiiskisson. Inclosure, No, 2. Sir, York, Upper Canada, 31st May 1H28. On account of t'-T Absence of the Chief Justice, by Permission of the Lieu- tenant Governor, UiC Two Puisne Justices of this Province alone were present in the Court of King's Bench, established in this Colony, during t^ -J last Term. Much Difference of Opinion existed between us ; which, by preventing any Decision, may vmteriallif injure the Parties interested. This has led me to investigate minutely the Constitution and Power of the Court ; and although I find it has been the very frequent Practice for Tuv, or even One. of the Judges to sit " in Bench," as it is called, yet as the Provincial Statute by which the Court is established requires " that His Majesty's Chief Justice " TOGETHER with Two Puisuc Justiccs shall preside in the said Court," I now consider all that hitherto has been or may be hereafter done, contrary to the express Terms of the Act, altogether void. Entertaining this Opinion, I feel bound to express it publicly when the Court shall again open (the 18th Inst.). I have endeavoured to explain myself more fully to Mr. Stephen, as Counsel to your Department, on the Subject which I have ventured to mention to you, the Moment I came to a Conclusion upon it, in order that the Excitement, which I fear will inevitably be produced throughout the Colony, may be obviated as speedily as possible. I have, &c. &c, Rt. Hon. the Secretary of State, (Signed) JOHN WaLPOLE WilLIS. Colonial Department. P. S. — I hope you have reci wed the former Communications with which I have troubled you through the Medium of Mr. Stephen. Inclosure, No. 3. Sir, York, Upper Canada, 31st May 1828. I HAVE to request the inclosed may be officially forwarded. I have, &c. &c. Major Hillier, &c. &c. (Signed) JoHN Walpole War.is. I i ■^ ( ) Iiiclosure, No. i. eif GoTernnient Houiie, SdJiine IS2H. As the Letter inclosed in your Note to me of the 31st Ultimo, with a Re(iiiest that it may be officially f'orwardeil, is not accompanied by any Com- munication explaininjf for the Lieutenant (iovcrnor's Information that it relates to some Public Matter connected with the Government, or to any -Subject of which it is necessary his Excellency shouhl be apprized, I have received his Commands to return it to you, of course unoj)encd. I have, kc. &c. The II.iii. JiiMice Willis. (Sig"t-'d) (J. HlI.UER. Inclosurc, No. 5. cjf York, Upper Canada, 3d June 1828, I HAVE now to request you to lay the inclosed Letters (which relate to Public Husiness, in my Opinion of the greatest Consequence to the Colony,) before his Excellency the Lieutenant Governor. Not having done so in the first Instance was entirely owing to my not being sufficiently acquainted with Official Eorn s, and not, as I beg you will assure his Excellency, with the slightest /«/(7i Government House, 4th June IS2H. I HAVE the Honour to acknowledge the Receipt of yoin- Letter of Yesterday, whicli I have laid before the Lieutenant Governor ; and I have been com- manded by his Excellency to acquaint you, that your Letters to the Secretary of State and to Mr. Stephen will be forwarded. If those Circumstances should occur to which you call the Attention, not of this Government, but of the Secretary of Sute, it will remain for his Excel- lency to pursue whatever Course such Circumstances may appear to him to require. I have, &c. &c. Hon. Mr. .lustice Willis. (Signed) G. HiLLIEU. LIS. I Inclosure, No. 7- cj_ York, 29tli Januarjr 1828. We have perused the Dispatch of the Right Honourable Earl Bathurst, late His Majesty's Secretary of State for the Colonies, respecting the -Appnintment of an adilitional or Third Puisne Judge to His Majesty's Court of King's Bench in this Province ; and suggesting that Provision may be made for the convenient Exercise of an equitable Jurisdiction, by conunittihg to the Chief Justice, or one of the Puisne Judges of the Court of King's Bench, the judicial Office of Chancellor, under the Title of Master of the Rolls, or Vice Chan- cellor ; and, in obedience to the Commands oi' his Excellency the Lieutenant Governor, we have considered whether the Measure last referred to, or any Modification of it, can be conveniently adopted in Upper Canada ; and also C whether i •I . ( 10 ) wlietlier it may be necessary to obtain an Act of tlie Legislature, or to issue Letters Patent under tlie Great Seal, in order to render the jiroposed Increase to the Number of Judges legal and effectual. And we have now the Honour to report, that in our Ouinion it would not be advisable to erect an equitable Jurisdiction by ('onimis'sion. It is at least doubtful wlietlier, since the passing of the IJill of Rights, it is in tiie Power of the Crown to constitute any Jurisdiction with Authority to proceed otherwise than by the liuies and upon the I'rinciples of the Common Law. And as the Erection of an equitable Jurisdiction can only be desired for the common Benefit of His Majesty's .Subjects in tiiis Colony, we sec no Jleason to recom- inend that it should not be left to rest iq)on the sure Hasis of a Legislative Enactment, rather than upon the Exercise of a doubtful Prerogative; particu- larly as the lormer Course would properly inchule a suitable Provision from the Provincial Revenue for the Maintenance of the Officers constitntinc the Court. In reference to that Part of his Lordship's Dispatch which relates to the Appointment of an additionalJudge to the Court of King's Pencil, we have the Honor to reiwrt, that by the I'rovincial Statute of 17i)4., creating the Court of King's Bench, it is provided that a " Chief Justice and Two Puisne Jiukves " shall preside in that Court." The Legislature must be presumed to have intended something by that Provision. We conceive that the Legislature must have meant, cither that the actual Presence of a Chief Justice and 'I'wo Puisne Judges upon the Hench shall be necessary to constitute a Court, or merely that the Court shall consist of a Chief Justice and Two Puisne Judges. The first Construction is not the most obvious ; and as the Act ha.* never been so understood, to maintain such a Construction now would be to declare invalid a great Proportion of the Pro- ceedmgs of the Court of King's Bench, which have in fact taken place, and tnevita/)li/, before the Chief Justice and One Puisne Judge, or before Two Puisne Judges. Assuming that the Legislature rather meant that the Court should consist of a Chi"/ Justice and Trco Puisne Judges, the Question which I-resents itself is, whether it is competent to the Crown, under the existing Law, to appoint a Third Puisne Judge. There is no Question in our Minds, that before the Act of lyo* was i,assed it was competent to the Crown to have created, by Letters Patent, such a Jurisdiction as was created by that Act, and to have aj)pointed any Number of Judges that might have been thought expedient ; but if the Royal Assent has been given to an Act which controls and limits that Power in any respect, the Prerogative in regard to such Matter cannot be exercised in any Manner repugnant to the Act. It is a Maxim, that affirmative Words merely do not take away or abridge tlie King's Prerogative ; and therefore it might be maintained, with some lieason, that as it is not declared by the Act of lygt that more than Two 1 uisne Judges shall not be appointed, and as the Existence of a Chief Justice and Three Puisne Judges is not inconsistent with the Enactment that a Chief Judge and Two Puisne Judges shall preside in the Court, there is no Objec- tion to the Appointment of a Third Puisne Judge by the Crown ; but it appears to us so decidedly inexpedient to suffer the Constitution of the Supreme Civil and Cruiunal Court in the Provinces to rest on a doubtful Basis, that we do not advise the Appointment of an additional Judge, without first proposing to the Legislature to make an Alteration in the existing Law, so far as it respects the Number of the Judges. We have, &c. (Signed) John B. Robinson, Attorney General. Major Hillier, ftc. Kc. H. J. BouLTON, Solicitor General. I I or to issui' •sed Increase it would not [t is at least tlic Power of ed otlierwise And as tiie tlie conimoii )ii to recoin- a Legislative ive ; particu- ovision from stitiiting the elates to the cii, we have ng the Court uisiie Judges ling hy that iier that the ' Hench shall cou.sisl of a not the most I tain such a I of the Pro- 1 place, and before Two It the Court !stion which the existing ' was passed, 'ent, such a .' Number of I Assent has respect, the any Manner y or abridge with some c than Two "iiief Justice that a Chief s no Objec- ut it appears ipreme Civil It we do not losing to the respects the General, iieral. ( 11 ) Inclosure. No. s. Copy of a Judgment delivered by .Mr, Willis in a Civil Cause iti the Court of King's Uench : extracteil tiom the " Canadian Freeman'" of 2fnh May ]8i28. Juilge Willis said, The Facts of this Case are simj)l v these :— A gross ()iitra'»c was committed on the Person of the Plaintirt", for which he brought his Action against the Defendants. In order to su|)i)()rt the Plaintiff's Case, Mr. Alexander .Stevens, Mr. Allan M'Nab, an Attornev of this Court and one of the Counsel employed for the Defendants, Mr. Chiwitt, also an Attornev of this Court, and a Mr. (iurnett, were called upon to give Testimonv. Hut they refused even to be sworn in the usual Maimer, stating as a Reason, that tiiey could give no hvidence in the Matter but wh.it might tend to criminate themselves; and Mr. M'Nab and Mr. Chewitt further endeavoured to shelter themselves from being Witnesses, on the Ground of being professionally concerned for the Parties. The Learned Gentleman who tried the Cause was about to commit these Gentlemen t()r their Contumacy in refusing to be sworn ; but he did not do so, as the Parties, if guilty of Contempt, might be punished on Application to this Court. Under these Circumstances, and because the Counsel tor the Plaintiff was refused the Reply whicii he had clairjd to be entitled to, the Defendants, althougii he introduced no Evidence, having introduced new Matter, a Rule Nisi for a new Trial has been obtained ; and it is now for the Court to say whether that Rule shall or shall not be made absolute. The .Solicitor General, in shewing Cause against the Rule, as I understood him, began by stating that this was an Aggression against the Public Peace, and a ht Subject fur a Criminal Prosecution. In this I entirely agree with him ; and I only regret that he, as the only Law Ofticer of the Crown on the Circuit where the Ofience was committed, and who, therefore, as I am informed, according to the present Practice, was entitled to tiie exclusive Privile"e of being employed in all Criminal Prosecutions, should, by defending those'who were charged with tlie Outrage, have possibly prevented an earlier Appeal to tliose Laws which have been maile for the Protection and Peace not only of Individuals but of the Community. It is a fhvoiirite Maxim in the Mother Country, tiiat an Englishman's House is his Castle ; and I trust that truly English Feeling will never be lost sight of in a Rritish Colony. But, when the Officer whose Duty it is to enibrce Obedience to the Law, appears in a Civil Action to defend those who have transgressed it, Lord Coke's Axiom, "Oderunt peccare fbrmidi- - Pocme," holds good no hmger. For how, I would ask, can those whose Conduct is defended by the Public Prosecutor although merely in a Civil Action, stand in awe of Pjblic Punishment for that very Conduct. It was objected, in the first place, against this Rule for a new Trial being made absolute, that what it is supposed the Witnesses who refused to be sworn and examined could have proved, and its Materiality to the Issue, should have been shewn to the Court by Affidavit. Now as to this the Law stands thus : " If the Matter be such as did not or could not appear to the Judge at Nisi «' Prius, It IS declared to the Court by Affidavit ; but if it arise .t the Trial, it is " taken from the Judge's Notes, who usually makes a special an I minute Repcrt " of what occurred." (3 RIa. Com. 9i.) From the Notes in this Case it clearly a])pears, that the Persons refusing to be examined had some Knowledge of the Transaction, as they only excuse themselves from giving Testimony from the Fear of implicating themselves. Iwo of the Witnesses, imleed, also superadd the Excuse of Professional Con- hdence ; but it is evident there might have been many material Questions asked which would not have criminated the Witnesses ; and in respect to Facts unconnected with and before the Professional Relation su!)sisted, no Affinity in this Case IS in my Opinion necessary. It was then objected, that the Plaintiff; to qua ify himself to move fbr a new Trial, shoukl have elected to be nonsuited. N\itliout adverting lo the Conseijueuces of a Nonsuit, which in a Ca-c like this would ~t'i AA* l|li| I I ( IC! ) would only have atroriloa the Witnesses another Opportunity of refusuig to I.e sworn at af uture Trial, I shall only say, the Refus,.l ..n the Part of the I'iamtifl to be nonsuited has been determined to be no Bar to a nevv I rial. But where a Flaintiir refuses to be nonsuited, contrary to the Opnuou ot the Judge, (whicli was not the Case here, for there does not appear the slightest Intimation to thel'laintiilat the Trial of the I'rop.iety of such a Course bemg adopted by him,") tho new Trial shall be without Costs. It was then urged tliat this was a Motion for a new Trial on accmint ot the small Advantages given by the .Jury, and that the Court would not in general entertain such an Application. I consider it made on an entirely ditterent Ground— a (iround which may indeed artect the Damages, but which is tota ly distinct from an Application solely because the Damages were small; I consider this an Application founded on the Fact that Evidence sought to be adduced on the Behalf of tlie I'laintiff was improperly suppressed. It was then said, as One of the Defendants was accpiitted, and the Verdict only against the other Two, no new Ti iai could be granted. To obt:iin a Rule for a new Trial in Civil Actiors, at the Instance ol the Defendants, it is in general required that all must join in the Motion, though there has been a Verdict only against some of them ; and if all must join when the Solicitation is on the Fart of the Defendants, what Reason is there, ui a Civil Action, why all should not be joinec', when the PlaintifTmakes the Appli- cation ^ In regard to a new Trial, it has been determined, that notwithstanding Evidence has been given on the I'art of the Defendant, and he has obtained a Verdict, the Plaintiff may still, on reasonable Ground, have a new 'I rial. 'f then a Plaintiff may have this Remedy even against a Verdict for the Defendant, it seems to follow that where the Plaintiff himself is in Possession of the Verdict, which he waives for the Purpose of a new Trial, there can be no Reason why it should not be granted as to all those who were Parties in a Civil Action, whether fouiul guilty or acquitted, for the Waiver of the Verdict puts them all on the same Footing. I have been speaking hitherto of Civil Cases. In Penal Actions, and in Criminal Prosecutions for Misdemeanors, the Law, anxiously distinguishing tiiem from purely Civil Suits, on account of the great Favour which it shews to the Liberty of the Subject, has provided that there shall not be a new Trial where there has been a Verdict for the Defendant. And in Misdemeanors, where the Indictment is against several Defendants, and some arc acquitted and others convicted, the Court, contrary to the Rule in Civil Actions, may grant a new Trial as to those Defendants only who are convicted, if the Conviction appear improper. (Rex v. Mawley, () T. R. 01!).) And in sucii Case it has been holden, that the Court is not fettered with any Rules in granting a new Trial, but will either grant or refuse it, as may best tend to the Ailvancomeiit of .Iiistice. (lb. 638.) Such tiien appears to me to be the true Doctrine in regard to granting new Trials, even ufur the Evidence has been fully gone into, if it appear that it sbouhl have been a different Conclusion. In this Case, however. I am satisfied that there are strong probable Grounds to suppose that the Merits have not been fully and fairly discussed, and that the Decision caimot, therefore, be conclusive as to the Justice and Truth of the Case. The Eviilcnce hitherto suppressed may establish a Case against the Defendant Robertson : it may give the Jury Reason to award the Plaintiff greater Satis- faction for his Wrongs. Should it not do so, the Plaintiff, who takes the new Trial at his own Haiiard, must pay the Penalty of his Rashness. But it was said the Plaintifl" ought to have come prepared with his Testimony ; and I admit that a Party will not be relieved on account of the Want of that Evidence, which, with proper Diligence, he might have procured at the Trial. And this brings me to that Part of the Case which seems to have been con- sidered in the Argument as the most important. Of those called upon to give Testimony, Two (Mr. Chewitt and Mr. M'Nab) were Attorneys of the Court ; the former employed as an Attorney, the latter as a Barrister, for the Defendants in this Cause. They were called upon by the Court to be sworn to give such Evidence as they were able, without criminating themselves, or betraying Professional Con- fidence. How far any Questions they might be asked would have such a Tendency it t; ^ 'til ^ liiising to l)f tlie riaintift' But where uiffe, (wliicli iitimalioii to ; adopted by :ount of the It in general rely different lich is totally II ; I ciinsidir I he adduced as then said, y against the stance of the otion, though istjoin wlien is there, in a vcs the A|)|)li- twithstanding has obtained ew Trial, erdict for the in Possession there can be •e Parties in a )f the Verdict herto of Civil lemeanors, the )n account ot , has provided /erdict for the i>;ainst several ;ourt, contrary efendants onlj/ X V. Mawley, Court is not ijrant or refuse granting new appear that it , I am satisfied have not been , be conclusive the Defendant 1" greater Satis- takes the new lis Testimony ; e Want of that ;d at the Trial, ave been con- iidMr.M'Nab) •ney, the latter ch Evidence as olessional Con- ach a Tendency it ; ( vi ) ^ it was for the Court, and not '.or them, to determine. They did not oh.ect to give Evidence, because they hatl not been served with Process lor that I'ur / pose : nor did Mr. Stevens then object, as he now does, to the IrrL-.rnlaritv 1 of the Subpoena ; so far fioni it, indeed, he wislied to be sworn hut in a I qualified Manner : neither did Mr. C.urnett object to give his Testiinoi'iv hecuise he had not been duly summoned. Witii regard to iMr. Cluwitt and Mr M'Nih I am of Opinion that as Attornies of the Court they were "'iiiliv of Con- tempt in refusing to obey it., fnjunctioiis ; and I think Mr. Stevens was also i contumacious, even supposing ti.- Service of t!ie Siibptuna to have been irregular. Appearing, and not objecting to the Want or alleged Irre.rularitv of the 1 rocess, in my Opinion, cured the Delect with respect to Chewitt M'Nab, and Stevens, whatever may have been the Case as to (niriiett Thus' in the Case in Cooper's Reports, cited in the Argument, Lord .Manslidd M asserted the Authority of the Court in compelling an Attorney to give Evidence 1 though the Attorney alleged that the Process with which he was served for that Purpose was irregular ; and even considering Mr. M'Xah us a Barrister ; only, and not an Attorney, it seems clear, that notwithstandin.r Barristers as I '^"ch, are not OIHcers of the Court, hut merely practise as Counsellors yet, inasmuch as they have a special Privilege to practise the Law and their Misbehaviour tends to bring Disgrace upon the Law itself; tliJv are I amenable to the Court, as other Ministers of .Justice are, (',' Hawk. ^ly' -md References), Respecting the Waiver of the Irregularity of the Subpa-na' by Stevens, if in fact any L-regiilarity existed, I shall merely refer to the Case of Harris v. Mullet, 1 Taunt. .08., in which it was lield, that where a Defendant was summoned to appear before the King's Justices at Westminster on the Morrow of Saint (witliout naming the Saint), to answer the Plaiiitilf in a Plea of I respass, the Defendant not having appeared, Two Writs of Distringas successively issued, and Execution was levied. When the Sheriff's Officer called to execute the first Writ, the Defendant informed him he had sent his Wife to Town to settle the Action. Although it was urged that this was not an Irregularity, but a Defect of Process, and therefore could not be cured, yet the Court held the Defendant had waived it ; and there are numerous other Instances where the Defect or Irregularity of Process has been waived by Ad- pearance. ^ i I am inclined to think thatGurnett also by his Conduct waived the Necessity of the previous Service of a Subpcrna; but on this I give no Oiiinion. Had the Question merely depended on the Power of the Court to enforce these in its Presence (not properly subpcrnaed) to give Evidence, I should have considered myself bound by the Authority of Bowles v. Johnson, 1 Sir Wm. Blacksione's Rep. 36, and ilecided that the Court had no such Power. It is there said " A Person not properly subjjQpnaed is to he looked upon asaStander-bv and •' it is no Contempt of the Court of Nisi Prius for a Standei-by to refiisj to be " examined, much less of this Court of King's Bench." Of the Power of the Judge of Assize to fine and imprison for Contempts committed in his Presence there, I have no Doubt ; but, like all ether Powers, it is to be exerciseil with Discretion; and I think it due to the Learned Gentleman who tried tlieC"au>;e to say, that in my Opinion he exercised a \ery sound Discretion on "» Occasion. The Liberty of the Subject should always, as has been the Casc> here, be respected, as far as it possibly can be, without obstructing the due I Course of Justice. Next to doing Right, says Sir W, Blackstone^he great ' Object m the Administration of Justice should be to give Public Satistlic-tion. J -^ " ."^^ ■, ,}'}'' }° "'"">' <^^bjections and Doubts (and i may add, if Evidence be withheld which might serve to strengthen the Verdict, and bring the Matter home to all Parties against whom the Charge is brought,) in the Mmds of his Counsel, or even of the By-standers, no Party would go away satished, unless he had Prospect of reviving it ; such Doubts, such Suppressioii, would with him be decisive. He would arraign the Determination as mani- festly unjust and abhor a Tribunal which he imagined had done him an Injury without the Possibility of Redress. Granting anew Trial cures all those Inconveniences, and if ever there were a Case that called tor one I think it is the present - in regard to the Reply from the Case of the King v. Bignold, cited in Archbold, ( I have Notes of that Case as 13 it i ■* • * * A A !M ill «l ( II ) it occurred at Nisi Prius, and afterwards in the Court above on this Poiiit, although I have not the Case itself) — and also upon Principle, I think the Plaintiti's Counsel was clearly entitled to it; hut I wdl not say that I consider it so important, that I would grant a new Trial on that (iround alone. In forming my Opinion in this Case, which I have now given at very consi- derable Length, I viewed this Case, as I hope I shall do every Case that comes before me, solely with reference to its intrinsic Merits. Totally devoid of all Party, all political Feeling, it has been, and ever will be, my earnest Desire to render to every one impartial Justice. My Conduct, however, has not been so construed ; and of late the Slanderers and the llevilers, like the venomous Reptile of the Country, although fortunately heedless of their Rattle, by which they may be traced, have put forth their poisoned Tongues. Hut, — " Justuni cl tenaoem propositi viruiii Non ardor civiuni pruvajubentium, Not! viiltus inslantis lyrnnni, Mente qiiatit sulida." " 'Hie man, in cunscioua virtue bold, Who dares liis honest purpose hold, lliisliaken hears the crowd's tumultuous cries. And the stern tyrant's brow in utmost rage defies." Inclosure, No. y. I Sir, York, Upper Canada, .5th June 1828. I MOST unequivocally declare, or rather repeat, that by leaving the Letters inclosed to you open, and requesting them to be laid before the Lieutenant Governor, my Object was to call the Attention of his Excellency, as well as that of the Secretary of State for the Colonies, to the Whole of their Contents. I have, &c. &c. Major Hillier, (Signed) JoHN Walpole Willis. he. &c. &c. \ B J No. 2, COPY of a Di.spatch from Major General Sir Peregrine Maitland to Mr. Secretary Huskisson j dated York, Upper Canada, 26th .Jane 1828. — Eight Iiiclosures. Sir, Upper Canada, York, 26ih June 1828. In consequence of some very singular Proceedings which took place at our last Criminal Court, at which Mr. Willis for the first Time presided, and of Two Letters which he addressed to me, I found it necessary to refer to the Attorney General for an Explanation. This, as he desired to make it full and satisfactory, has been necessarily delayed, from the Pressure of his various official Duties. I now have the Honour to transmit it, earnestly entreating your Attention to the Subject, in order that the Opinion of the King's Govern- ment may, as soon as possible, be explicitly made known, I have ever deemed it of the first Importance to the Peace of the Colony, that the Administration of Justice should be unembarrassed by Considerations and Feelings that ought to be far removed from it ; that it should enjoy Public Confidence, and that its Ministers should be respected. I speak what I know to be the prevailing Sentiment among the mo.st intel- ligent and respectable, both here and in the adjoining Country, when I declare, that in my Opinion the Course pursued by Mr. Willis was not only to be regretted, but condemned ; and that his Attack upon the Attorney General was unjustifiable, and if unjust, as I think it was, was certain to be most injurious to the Character of the Government, and to the Administration of Justice. I feel i ( ir. ) this Poiiit, [ think the I consider le. very consi- tliat comes ivoid of all L Desire to Slanderers fortunately forth their 1 feel it to he due to Mr. Robinson, after his Fifteen Years of PubUc Service, not only without Censure, but marked with the Approbation of His Msjestyl .as exi)ressf>d in the Inclosed Dispatch, with the full Confidence of the Local (Jovernment and of the Public, that I should most earnestly repeat my Request, that the Subject of this Conununication may receive as early Attention anil as close Investigation as the Importance of the Matter requires; and if it shall be found, as I confidently expect will be the Case, that in adiiering strictly to the Practice of all his Predecessors in Oflice, tiie present Attorney CJeueral has not justly incurred the Censure that has been so hastily passeil on him, then I trust that the Sentiments of His Majesty's Government maybe so uncoui- vocally exjjressed on the Subject, as to aflbrd to him, in tiie upright and conscientious Discharg? of his Duty, that Security and Protection to which I feel Iiini to be entitled. I have the Honour to be, i^c. ike. The Right Hon. \V. Huskisson, M.F. (Signed) P. Maitlani). kv. ^c. &c .lime 1828. the Letters Lieutenant as well as r Contents. Willis. AITLAND to 26th .Tune June 1828. ace at our led, and of efer to the ike it full his various entreating ;'s Govern. le Colony, isiderations [ijoy Public mo.st intel- I I declare, only to be ey General St injurious ustice. I feel i Inclosure, No. 1. Sir, York, Upper Caniida, I2lh April 1828. As Judge of Assize Yesterday, 1 stated that the Law Officers of the Crown (who have hitherto always conducted, and who alone are paid by the Public for all Criminal Proceedings in this Province,) were in my Opinion bound to prosecute for all Crimes which they know have been committed, of their own Accord. But the Attorney General (and certainly not in so courteous a Manner as the Ik'iich is usually addressed in England) disclaimed that Duty, admitting, however, that he and the Solicitor General were the Ptitilic Prosecutors. I then said, the Question must be decided by the Government ; and as nothing can be more necessary for the due Administration of Justice than that the Source from which all Public Prosecutions must originate should be distinctly understood, I do not think I should honestly discharge the Duties of my Office, did I not respectfully submit this Matter to your Notice. I have the Honour to remain, .Sir, Yours, &c. To the Lieut. Governor of Upper C:m,uh, (Signed) .FoHN \\'aI,POLI: WlI.LlS. Ktc. &c. ike. \ r> J my Inclosure, No. 2. Sir, York, Upper Cansda, 14th April 1828, I AM sorry to have Occasion again to appeal for a Decision respecting the Duties of the Attorney General of this Province, who nois repiuliates (as I understand him) what he stated on Friday last ; namely, that Criminal Pro- secutions in this Province are, as in England, open to the Bar ; and he has this Day in open Court further asserted, that as His Majesty's Attorney General in this Province, he is answerable for his Conduct in his legal Capacity, not to any of His Majesty's Judges of this Colony, but only to the King's Government. If this be so, the Question is, whether the Attorney General (who is not oniy a Barrister, but also a pkactising Attorney and Oflicer of the Court,) or the Judge who presides, is the Superior ? I fiad Occasion to notice the greater Mildness of the Criminal Law of England, and theAdmi- nistration of it, as it mxc stands, to that which is admitted into the Province, (which is what it was in England in 1792), and I now call on your Excel- lency to observe the Improvements since that Period, and particularly those recently made by the Right Honourable the present Secretary of State for the Home Department. A Sense of the Duty attached to the Dignity of my Office compels me, however reluctantly, to add, that the Language of the Attorney General was such m J 11 'M,M a^ M il f I'i ) siicli tliiit I LoiiM only tolfiiitc from liis bi-ing an Ofliici o< fiovernmont nn.l from u\y Disire on that Actonnt not to obstrnct the Public Husini'ss. ' In this Controversy I intirely disclaim ail personal l-'ccling. I do not, nor can / civr londcaccnd to entertain it in any Tublic Measure; but the ('risiH lias now arrived at which it must be determined how Criminal I'rosecutionn Iwrc are to be conducted, and how liir the Law Officers of the Crown are answerable to the Jiid^'es of this Province. I have the Honour to be, &c. &c. kc. To the Licul. Governor ol Upper C»na.la. (Signed) JoHN WaH'OLE Wll.LJg. Inclosure, No. 3. Sir, Vork, 2O1I1 May I82H. The Reference which his Kxcellency the I.ieiitcnant CJovernor has been pleased to make to me, upon the Two Communications recently addressed to Iiim by Mr. .Justice Willis, affords me the Opportunity of laying befitre the Government, in the Shape of Kxplanation, Occurrences so much out of the ordinary Course, and, in my View of them, of so important a Hearing njion the Pidilic Service of this Colony, that I could not otherwise have forborne making them the Subject of a Memorial to his Excellency, which I intended to submit so soon as the Termination of the Assizes should leave me sufficiently at leisure. Considering mv relative Situation in regard to Mr. Justice Willis, I am, on every Account, better pleased that the present Course is open to -iie. Having discharged the Duties of a Crown Office > in this Province for more than Fifteen Years, and, during Nine of those, under his Excellency's Obser- vation, I cannot but believe that it was Matter of Surprise to his Excellency to receive at this Time from Mr. Justice Willis a Representation complaining of my official Conduct ; the first Charge, or Insinuation of a Charge, I venture to believe, that has been addressed to the Government of this Province in respect to any Proceeding of mine by any Member of the Rench or of the Rar, or by any Person connected with me in the Discharge of Official or Public Duties. I regret least of all, on my own Account, the Occasion Ibr the Explanations I am about to offer ; but, since it has arisen, I trust I shall not be thought uiirei- sonably anxious to vindicate a Reputation which I have hoped I had earned in the Course of a long and rather arduous Public Service, if, in order to make this Explanation clearly understood, I beg to lay before his Excellency a Statement of Circumstances, without which it is impossible that a just Opinion can be formed of the Conduct of Mr. Justice Willis or of myself on the Occasions to which his Letters refer. Such a Statement accompanies this Letter I have forborne entering into unnecessary Details, but have, notwithstanding, been unable to compress it within a moderate Compass ; for it is my Desire tlrit through his Excellency, His Majesty's Secretary of State for the Colonies imiy be put fully in jiossession of Circumstarces upon which I earnestly intreit an Opinion may be expressed. Upon the Representation made by Mr. Justice Willis, and upon the Pro ceedings detailed in the accompanying Statement, Two Questions present themselves, and upon these I am most desirous that the Government should declare their Opinion. 1st. Whether, because I forbore, under the Circumstances and for the Reasons 1 have mentioned, to prefer an Indictment for the Riot, when the Person injured . 'Ifl'ned to piosecute, I was fairly subject to the Censure which, to my Siirnrise Mr. Justice Wilhs thought proper to express without the slightest Qualification or Iteserve ? o v And 2dly. How far tlie View which I have hitherto taken of the Riclit of the Crown Officers to conduct Criminal Proceedings in this Province is or i^ not correct ? o ^, la ui n Upon the first Point, I beg to refer to that Passage in the Narrative from \^^^\ TTT" ^° ,Se which explains the Principles upon which I acted 11) tiiat Case, and on which I have uniformly acted in Cases of the same Description, ornmcnt, ami ru'ss. ilo not, nor )iit the Crisis I I'rosecutiotiH lie Crown are >LE Willis. 20ili May I82H. nor lias hecti ' aiidresseil to iig before tiie 'li out ()(' the ring iijion the home making clod to submit sufficiently at illis, I am, on •ne. incc for more ency's Obser- lis Kxccllency omplaining of , I venture to lice in respect lie Bar, or by 'ubiic Duties. )x|>lanations I lought uiirea- iiad earned in r to make this ^a Statement linion can be Occasions to ;tter. I have aiiding, been ' Desire, that Colonies may tiy intreat an pon the Pro. tions present iment should r the Reasons 'erson injured > my Surprise, Qualification the Jlight of incc, is or is tnative from iliich I acted of the same Description, I ( ( 17 ) Description. I must add. however, on tins Point, that Mi. Justice Willis's Con- ception of the Duties and Responsibilities ot the Law Officers of the Crown itfems to be very much at variance with Opinions wi.ich I imaLMned F bad derived from the most respectable Authority. Withii. Half an Hour after Mr. Justice Wilis chose to adopt the Statement, irregularly addressed to him by a 1 erson indicted and not upon his Trial, and to found upon that Statement an inupiahfied Censure of my Public Conduct, he professeii himself to be but lilt e conversant m Criminal Proceedings, and re(iuested Infbrmatiou on some ordinary Points. It has been my Duty, for a long Peiio• -ged that 1"' they ! 3»A«r ( '» ) llicy liati alitiuly bet'ii maile to pay Damages in a Civil Aci.oti to nearly KiMy Tinns the Aniounl oC the Injury committed ; that tlie Party injured had made his Option, and exercised a Discretion uliich helontjeil to him, in forliearing to prosecute criminally, while his ( ivil Action titr the same Injury wan depending; that having,', in this Civil Action recovered Damages, which, l)y his own Confession, were l)evond all Comp;'rison greater than iiis Loss, he liad, when afterwards applied to hy the Grand luiiuesl of the Country, declined to prosecute, and still dfclined ; that the I'erson who now urged the IVosecutioii was in no Degree interested, hut v/as a Stranger to the whole Proceeding; that his urging the Prosccutitm now was not merely malicious, but was ;ni irregular and illegal Attemj)t to evade Punishment, by setting olF one Otience again^i, uiiother, and to obtain a Conviction of other Persons, which could have no legal Krtect in privileging the OHencci for which he stood indicted ;— had siicli an Application been made to me as Attorney (Icneral, and on such Cirounds, 1 need not now discuss whether I ought to have acceded to it or not ; but it is certain Jiat if I had done so the Proceedings must have ceased ; and I think I am not v, rong when I state, that in Kngland the Decision of the Attorney (leneral would not, in such a Case, have been made the Subject of Censure by any Judge on tlie Ilench, but must and would have been con- sidereil an Act as clearly and exclusively within bis Competency, as any Act of the .Judge could be admitted to belong to him under his Conunissioii. The Second Point is one of great Public Interest, and I am liap|)y it has presented itself for Discussion, if any Doubt exists upon it. Upon the Merits of the System, which places in the Hands of the Crown OlHcers the Conduct of all Criminal Prosecutions in the Superior Courts, I do not desire to offer my OfHcers the Conduct , . not desire to offer my Opinion. In addition to the declared Sentiments of many of the most eidightened Lawyers and Statesmen in Knglaiui, a long Experience in this Province has aflbrded us Means of judging, and u|)on the Result of that Lxpe- riencc it is fit the Question shoulil be decided by those with whom the Decision rests, whenever it may, for any Purpose, be properly raised. It did not at the Time, and does not now, appear to me, that in a Court of Justice, before a Judge commissioned to administer the Law as it is, upon the hearing of Observations irregularly, improperly, and intemperately addressed to the Bench by a Person indicted for a Number of Libels, but not u]nm his Trial, it was either the proper Time or Place for discussing, and still less for condeinning, the Policy and Expediency of a .System which had prevailed ever since this Government was formed, which has long been established in the other Uritish Colonies, and even in a Part of the United Kingdom, which it has been thought wise to .adopt in most other Countries, and which I say decidedly, because of that his Excellency has ample Means of judging, has never been viewed with Disapi)robation or Distrust by the People ot this Province. Mr. Justice Willis took Occasion, during the Assizes, to state expressly that he sliould not be satish'ed till he saw Public Prosecutions thrown open, in this Province, to the Bar, as in England. The Quarter Sessions, which no Public Prosecutor attends, afford Means of judging which Mode of adminis- tering (Yiminal Law is most satisfactory to the Public, and best attains the Ends of Justice. If a Preference is felt for the System in use there, I can only say I have never heard it expressed by ny Persons, and that it is decidedly my Belief, with very good Means of Observatio?^ that whatever Pre- judice may in Time be excited, any Dissatisfaction w''' ' 1 prc.ent System of conducthig Criminal Prosecutions in the Courts of O "~ at present, conhned to a \cry few Individuals in the Ass, sition to every ArrangemeiiL and Institution of the Go indiscriminating. But, wiiether the System of placing the Conduct of Criminal Prosecutions in the Hands of Public Officers has been established by the Legislature or by the Executive Government, it is and has been establisliccl in Canada for more tlian Sixty Years. If Arguments can be used which will demonstrate its Inexpediency, I dare say that neither the Legislature nor the Government will refuse to entertain them, and it is to those Quarters that I would respect- fully submit they ought to be addressed. I have I nd Terminer is, , whose Oppo- .ment is very nearly Fit\y il liuil inudc irliciiring to Injury was wliicli, by [)ss, lie iiau, (Ic'L'liiieii to Prosecution eilint,' ; that II irregular lice agaiiiiiL Id have no Jteil ; — had id un Hiich ;d to it or \ e ceaseil ; sioii of the Subject of been con- ey, as any nmission. ii|)|)y it has the Merits le Coiuliict to ofVer my the most nee in this that K.\|)c- whoin the .1. a Court of s, upon the ' addressed >t 111)011 iiis till less Icir vailed ever lied in the 'liicli it has (leeidetlly, never been ice. ; expressly m open, in , which no )f adniinis- attains the lere, I can that it is atever Pre- -■nt System erminer is, lose Oppo- it is very osecutions ture or by for more nstrate its Dvernment Id respect- 1 have 1 have never b«'»bi« obnervoil, lliut a .ludge o( \smc hiw eoimdnvd it i.i !.,■ within the Compa-ts ol his judicial Duties to nndir the IVoph. imiiatieiil oi the System of .riiris|>riiilen(e o( which he l()riiis a Part ; and, at all Kveiits I must take the Occasion to represent, that so lomj as the Crown OlHcrrH hu\e those Duties to dischargf, it is e(|ually <'or the Interests of Sociftv, and for the Honour and Security of the (ioveinment, that thev should be enabled to discliarge them with KHect ; which they are not likelv'lu ilo.if even the Jurors they are to address are to be taught by the Court to look upon their OUice, aiidthe Duties it exacts liom them, with Suspicion and Di<,like,aiul to consider their Authority in Criminal IVoceediugs as unwisely comnuited to them, it not usurped. As connected with these rroceedings I will not remark (iirtlur upon this Subject, because it is clearly not by a Court of .fiistice, nor in any Procee.iing in a Court of .Fustice. that the System can be overturned, which has been so long established. Whenever it is projiosed to alter it by an Act of the (ioverii- meiit, or of tin Legislature, a nroper Occasion will arise for presenting Facts and Keaso'iin^s, which Mr. Willis has, |)erlia|is, overlooked. I must, however, adi! an Explanation in regard to the Kxpression in Mr. Willis's Secmd letter to his Kxcellency, which has been referred to me. that " I had icpudialed (as he uiiderstooil me) what I had stated on the Friday " preceding, namely, that Criminal IVosec ns -i this I'loviiice are, as iii " England, open to the Har." I must have been sti ngely misapprehended by Mr. Willis, (or upon liefereiice to several (ieiitlemeii of the Har who were present I find they distinctly jierceived my Meaning in the Observation to which he alludes, and in which I was careful to make myself under-,tood. When Mr. Justice Willis, on the first Occasion, declared his deciiled Condemna- tion of my Conduct, in not having indicted the l'ers(>iis who committed the Trespass upon the I'ress and Types, he remarked, that it was particularly my Duty in this Province to have prosecuteil, because he understood the Crown Otlicers here assumed to themselves the exclusive Uiglit ol' conducting all Criminal Prosecutions; and that Parties injured had no Means of ap|)ealiiig for Kedivss in a Criminal Proceeding, except through them. 1 rejilied, that in the Court of Quarter Sessions, where Riots and other Ureaches of the IVace are most usually tried, there is no Public Prosecutor, but Prosecutions are in that Court, as in England, open to the !Jar ; and furth/r, tliat I had never asserted, or considered, that all Criminal Charges in the Superior Courts must, of Neces- sity, originate with the Crown Ollicers ; and J explained my \'iew oi' the Matter as I have stated in the Narrative, which I thought s'llliciently plain. The Judge, however, somewhat hastily, u.ul in a Manner not usual in our Cri^ miiial Courts, seized upon my Exjircssion, ami in the Vone of lletori said, '• Oh, " then, I am to understand, it seems, that there is no Public Prosecutor — the " Attorney General informs me that there is no Public I'roseciitor ; then " Mr. Collins you make your Charge as soon as you please ;" — or to that Efti;ct. I replied, that I did not say there was /lo Public J'rosccittor, nor had ever said so ; that there were Public I'roseciitors, of whom I was one, whose' Duty and whose Right it was to conduct all Criminal Prosecutions for which thev thought tliere was Ground. That I had only denied that I had ever disputed the Power of the King's Subjects to resort to the Criminal Courts with their Complaints, without going, in the first Instance, to the Crown Officers ; or that the Attorney General's refusing to prefer an Indictment concluded the Party ; and I repeated more distinctly my former Explanation, On a subsequent Day, when Mr. Justice Willis recurred to this Subject, I again gave the same Explanation, which is erroneously stated to be a' Repudiation of my former Statement. That I had little Occasion to involve myself in any Contradiction can !)<■ most satisfactorily shewn, by calling to his Excellency's Notice the Opinions which I had openly and officially expressed, in Writing, more than Nine \ears before, on this same Question ; and to which, as it was fresh in my Recollection, I particularly adverted in the Explanation on which Mr. Justice Willis remarks! The Opinion I refer to was given by me in 181'J,iii a Report to His Excellency of the Criminal Prosecutions arising out of the Contest between Lord Selkirk and the North West Company, and is in the following Words : " Your Excel- ■' leiicy r ii,i, ( m ) " Icncy will permit inc to n-maik (ftMcnilly Coliiny, ainl whiih had not biin thought, by tho .fiulgt", vho pnsitled at ihe'linn'. to call in any Degree fiir their Cn, sure; w'len tliiNC ami other Circiinistamis are eonsideri'd, I must say that I cannot, and do Ti'tt, iieugm/e in the IVoireilings whitli took place any' Forbearamt' '-n the I'art of .Ml. .Iiistu-i Willis, to be attributed, as he expresses ii," to his rnl.iali.in " of me as a I'ublic Utiicer," ,iml •• to his Desire not tc obstruct th<- i'nblic " niisincss." I have always felt, that Courtesy towards the inesuiing Judge IS imlispeiisable for the Preservation of a due l{e<.pe( t fiir I'liblic Justice ; and this Com 'sy 1 have uniformly shewn to Mr. Justice Willis, both before and afier the Ceiisiiie he was pleased to pass upon me, unmerited as I felt that Censure to be ; but I need scarcely say, that the Courtesy I sjieak of should be mutuil. i'iie first Intimation of any Absence cf such Courtesy in the Pub'ie llelation between us was exiiibit'ed in the Attack which ^Ir. Willis thought proper to make u|)on me in open Court, and of which I must ever think I have a flight to complain as not merely iiiicourteous, but in no light Degree inconsiderate ami unjust. However little Connection it may seem to have with the particular Subject of this Letter, or with myself personally, I cannot but remark upon that Passage of Mr. Justice Willis'.s Letter to his Kxcelleiicy which represents the Criminal Law of this Province as !e(|uiriiig Amendment fi( :ii its great .Severity, that it is precisely what the Criminal Law of Knglund was at a Period when her Civil Institiiti forebore to touch our present I-'abric 'till the Lapse of another Year or two enabled us to adopt one in its Poom which should be complete in all its Parts, having leceivcil .Vmendments in its Pnygress, ami having been in soii.e Measure proved by Experience. At all Kveiits, it is only since the jireseiit Assembly was chosen that .Mr. Peel's Im|)rovements here commenced. I need not say that there has been but little Encouragement in the last Three Sessions for embarking in such an Attempt as a ;,reneral Revision of the Criminal Code. I have succeedetl in one or two partial Measures, and was obliged to abandon others, after introducing them, from a State of Things which I think the Country now begins to uiulerstand and regret, and which I trust therefore is not likely to continue. In the meantime neither the People nor their Repre- sentatives have shewn any Impatience of th.e present Code. Under it Crime „ has been and is cflectually punished, and certainly with no undue Severity in I Practice, for, except in Cases of High Treason and Miiriler, I can call to .Mind only One Instance of the Execution of .Sentence of Death in this Province for more than Twenty Years, and that was in a very aggravated Case of Arson. I am sensible that this Explanation is already protracted to an inconvenient Length, but I cannot conclude it without a Reflectioii upon the Manner and Occasion of the Questions involved in it lieing called into Discussion. I am no Apologist for Duelling, nor liave I any Inducement to be .so. During the Time I have been Attorney 'General, no Case of Death in a Duel has occurred Jierej if any had, I do not icel that 1 could have treated it with that Degree or" lenient and almost complaisant Forbearance that I have observed to be very frequently exhibited on such Occasions, both in England and the Colonies ; and indeed I do not sec why Mr. Justice Willis should have appeared to imagine that the Case which occurred in I8I7 in this Country was not dealt with at the Time so as to .satisfy the Ends of Justice. The Manner in which it was revived struck me, I confess, as extraordinary. I have frequently read, in Periodical Works and in Newspapers, the Statements published by Seconds of the Circumstances of a Duel, in which Persons were engaged, who, as well as the Seconds, were afterwards daily in Public View and even conspicuous in Public Life. If any Party Writer, wholly a Stranger to the Duel, wx-re indicted for scandalous Libels upon the Government, in the course of which he had stigmatized those Persons as Murderers, for the mere Purpose I" of 14 if ii: 1 « ^■^A-A * * ^ ai'A^r ( 'i'i ) of (lisgraciiif; llieni and the Government wliicli tlicy sorvetl, i do not believe tliat in an Kn-rlisli Court of Justice lie would be sutl'ered, even upon ills Trial for those Libels, niueli less when he had not been arraigned upon them, to insidt and abuse the Attorney (Jeneral, and to claim, in Terms as I believe have been seldom used in a Court of Justice, that before he should be con- denuied for his Outrages against the Peace of Society, against private Feeling, and t!ie Character of the CJovernment, Persons who had once been publicly discliarged in consequence of the Accpiittal of the Principal, should, upon his Prosecution, be, Ten Years afterwards, arraigned and tried forMurder. I do not tiiink so, because I am aware that if the Objects of his own Malice had been actually tried and convicted of Murder, and pardoned, the Law of Kngland would not sutler any one iiudiciously to libel them with opprobrious FpRbets ; much less in a Case where the Parties, never having been tried, were entitled to be presumed innocent lUitil Conviction, and when the Person whose Guilt must have been greater and more direct than theirshad been tried and acquitted. The Defendant upon the Libel, however, was permitted to take that Course. Perhaps the receiving his Complaint, and permitting him to become Prose- cutor, was inevitable. I mean only to state my Impression that such a Prosecu- tion could not, i)roperly, have any Connectio.i vvith the Proceedings against himself for Libel. However that maybe, Mr. Collins's Charge was entertained and acted upon ; it was pushed to the utmost ; he was allowed to conduct the Prosecution by his own private Counsel, the same who was engaged to defend him in the Cases of I^ibel. The Defendants were tried for Murder upon an Indictment such as they had been discharged from Ton Years beibrc. A .Statement of one of them was read in Evidence against him, w!iic!i was exto'tei' by the Necessity of defending, from the malicious Libels of the prcFjnt Prosecutor, the Character of the Principal, who had been tried and acquitted, which Statement was shewn and admitted to have been communi- cated in the Confidence of private Friendship ; and the Defendants were exposed to the Chance of Loss of Evidence from the D'^ath or Absence of Witnesses. Under these Circumstances the Trial proceeded, and the Defendants were acquitted. After the Prosecutor had thus failed to verify his Libels, I am at a Loss to comprehend his Claim to the Countenance of a Court and the Compassion of a Judge, Nevertheless the Judge did intercede, and, in a M-'nner which effectually disabled me from further proceeding, proposed to me .o discontinue the Pro- secutions for Libel, several of which had originated with the Grand Jury, from a strong Sense of the atrocious and disgusting Character of the Publications. It is not for me to determine the Propriety of such a Recommendation. I submitted to it; but I must say I am unable to reconcile the Appeal made from the Bench to my Forbearance in behalf of Mr. Collins, who stood indicted for various Libels of u most mischievous Tendency, with the very decided Censure passed upon me but a Day or Two before by the same Judge, for not volunteering to institute a Prosecution for a Misdemeanor of less moral Turpitutle, when the Person injured had been recompensed fifty-fold, and had declined to prosecute, and when the Grand Jury had, for that Reason, felt themselves warranted to forbear. If I had a Discretion to forbear, and could be asked to exercise it, after the Grand Jury //rtrf presented an OHence for which no Recompence had been obtained in a Civil Action, I cannot understand why I was not acting equally at least within the Limits of my Discrelion in forbearing to prosecute a Case which the Grand Jury declined to present, because the Defendants had been already severely punished. Such, however, were the Proceedings, the Particulars of which Mr. Justice Willis has not described, but which, in order to vindicate myself; I have stated in Detail, at the Risk of being thought tedious. They have been much distorted in the only Newspapers wliich reported them, and for evident Purposes, These Statements I have suffered to pass 6 without ( -jy lot bclievi- 1 liis Trial 1 tliem, to < I bulicve kl be con- ic FeelinjT, Ml publicly .1, upon /lis ler. )\vn Malice he Law of )p})robrious tried, were tlie Person I been tried hat Course. ;onie I'rose- a Prosecu- igs against entertained to conduct engaged to for ^Murder ears before. w!iic!i was bels of the n tried and 1 communi- idants were Absence of ndants were at a Loss to nipassion of I effectually lue the Pro- l Jury, from 'ublications. indation. I ppeal made lod indicted cry decided Judge, for ' less moral )Id, and had [leason, felt it, ajier the i had been ting equally ■cute a Case ts had been Mr. Justice have stated :h reported ;red to pass without without any other Notice than Iain at this Moment taking of llicni, having been on all Occasions satistiinl with tiio t'onsi'ionsiiess uf having doiu' my Duty, and studious only to e;^pl.iln my Conduct wIutc I am properly responsible. I have been mucii pained at the kind of Excitement whicli the I'roeeeilings of a Criminal Court have, lor the first Time in tiiis Province, been made to create, arr.l I think most inmecessarily. Had I juvferncl an Imlictment for the Injury done to the Press and Tyju's of Mr. M-Kon/ie, before his Civil Action was determined, I slionld have been lending myself to the dcclareil Wishes of tiie Offenders, as I have already explained ; 1 should have dejjrived the Person injured of the Option which the Law allowed him, and shoidd have been accused of desiring to prejudice his Civil Action, by interposing ofliciously with a Criminal Prosecution which he intentionally waivetl. After the Civil Action was determined, and very excessive Damages awarded, it did not seem to be necessary to the Ends of Public Justice that a Criminal Prosecution should be instituted against the M'isli of the Party injured. I nuist presume it ilid not apjjcar to be so to the Cirand Impiest, because, knowing the Facts, and having the Prosecutor before them, they did not present the Off-nce, though it was their peculiar Province. And I nmst presume that it did not appear so to Mr. Justice Willis, when, after a Pill had been found for the same Injury, Eighteen Months after upon the t'omplaint of Mr. Collins, who was in no .\lanner privy tr it. he jiroposetl to me from the Bench that it should be com|)romised, if I would forbear to urge the Indict- ments for Libel, thereby a}>pealing to a Discretion which he h.ui before virtually denied tome, or rather, perhaps, conceding to Mr. Collins a Discretion and a Power to forbear, which lie did not allow to have belonged to me as Attorney General, or to the Person injured, when the Pacts were recent. This Compromise was rejected by the Defendants charged with the Riot, because it came proposed to them as an Lululgence from a Person charged with scurrilous Libels, and as a kind of Purchase of his Impunity, The Trial necessarily proceeiled. Mr. Justice Willis j)residcd ; and the Defendants met the Charge, without desiring to evade it. They were of course convicteil, and were sen- tenced by Mr. Justice Willis to pay a Fine of Five Shillings each ; and 't was expressly declared, that they were fined no more because they had been made to pay very excessive Damages in a Ci\ il Action. The Prosecution cost the Crown £7 5s. I knew well the Imputations to which I should be subject, if. in Cases of Misdemeanor usually disposed of at the Quarter Sessions, and requiring in the Opinion of the Judge to be punished only by a Fine of Five Shillings, I should, against the Wish "of the Prosecutor, urge on a Prosecution which the Grand Jiu-y had seen no Reason to prefer, and thereby add a Charge of £7 5s. to my Accounis against the Government, or as many of such Charges as I could hear of Cases to pursue. Whether, under such Circumstances, the Censure which 1 received was called for, is now, humbly but anxiously, submiUed by me to his Excellency. I have the Honour to be, Sir, Your most obedient humble Servant, lo Major HiUier. &c. fvc. &c. (Signed) JoHN' 15. RoBiNSON, Attorney vieneral. Inclosure, No. t. May it please your Excellency. ^'"'^- ""'' ^'">' "^-'^• I BKG to make to your Excellency the following Report upon the Shatters to which Mr. Justice Willis refers in the Letter which he has thought fit to address to your Excellency. In the Year 1817 a I'atal Duel occurred in this Town between a Son of Mr. Jarvis, the Provincial Secretary, and a Son of Mr. Ridout, the Surveyor General. The latter fell. Mr. Henry Boulton, the present Solicitor General, and Mr. James Small, were the Seconds ; they were neither of them at that Time in any Public Situation or Employment. Mr. Jarvis was committed upon a Charge of Murder, made by the Coroner's Inquest, and at the next Assizes, I I r '.'4 ) Assizes, ill Oolol.er IS17, m\ \v,,s pivfciu.cl to tlic (Jrand Jury cluinnn.r liim with MiJidor, and Mr. lioullon and Mr. Small as IVincipals in tl'io Scrond Degree. 'Ilie (Jraiid Jury Coiind the liill against Mr. Jarvis for MaiislaiiTJiter only and Ignored tlie Hill as it respected the Two Seconds. Mr. Jarvis was tried at the same Assizes for the Manslaughter. Several M'itnesses were pro- duced, who proved the dying Declarations of the deceased ; ami after .eceiving all the lestimony which could he procired, indeiiendently of the direct Kvi- dcnce of the Seconds, who were involved in the same Charge bv the ("oroner's Inquest, the Petit Jury returned a W-rdict of Acquittal, which Was taken both upon the IndictiMent ami the IiKpiest. The Seconds, who had been cliarged by the Inquest with having been present, aiding and abetting, were di.-cliarged by 1 roclamation, under the Impression that the Acquittal of the l'rincii)al in the I'lrst Degree rendered it iinneces.sary, if not impossible, to urge the I'rose- cution further against them. The Connections of all the Parties being numerous, and forming no incon- siderable Proportion of the small Society of this Town, the melancholy Oc currence I have related excited a very painful Degree of Interest at the Time: and as tiiere was none of that Forbearance shewn before or at the Trial, by the lielatives of the deceased, which often on such Occasions imi)edes the air C oiirse of Pubhc Justice, this painful Interest continued to increase until the ( asc was disposed of by the proper Tribunal, when the open Exhibition of private Resentment ceased, and the Peace of Society became gradually restored. ' o j i was in England during the whole of these Occurrences, and returned to Upper Canada not long after the Trial, having been absent more than Two *iTf; -r '^ I'me that has since intervened 'I have been happy to observe that the I races of this deep AfHiction, and its Consequences, became gradually famterj Huleed the Breach in Society had been almost healed, except with jegarrt to Mr. Jarvis, between whom and the inunediate Relations of the deceased it was not to be cxp.cteil, and perhaps hardly to be desired, that any thing like a social Intercourse should be renewed. Educated at the same School with the young Men of both Families, I was on mtimate lerms with all, and I did not suffer this Intimacy to be in any Degree niterfered with, by entering into the Feelings which either Party had contracted, from the distressing Events that had occurred during my AbsxMice. Un tlie contniry, 1 think it is not unknown to your Excellency, that both Wr. Jarvis and the nearest Relations of the deceased have, throughout this 1 eriod, received from me more than ordinary Proofs of Friendship, and some of them within a very recent Period. i , < c HnT!!r/'';i""'l'/'°" "*" .^''^.""''''I'l'y Events of ISI7 has been revived, and the hostility they then excited has most unhappily lately been renewed, by a Con- currerice of Circumstances which c.uld not in any View of them have been expected to lead to such Consequences. Within a few Years Two Newspapers have been established in this Town, n 1 l"" ^-"I^uSS"' ?^'-'" "l »""••' '^'^« 'esponsible Stations in Society than t he Edi ors ot Public .Journals commonly are, who, being apparently without ."^1 r' .1 l"T'"f '• [>y ^ l^'^^i'-^' to preserve a respectable Reputation, have rail I o Hln r'"y V "''P'° ^*"" "' ^y '^'' ^"'I'"'-'*'' °f' I>i-'^POsitions natu- mon.l P MM ^'''^,°' .Society, to indulge in a liceutio'us Abuse, not e.dy of ubhc Men or Measures, but of private Individuals, such as, perhaps, lia.s ne\ er been exceedeil ui any Community. I always regretted the Tendency which such Publications might have in m sleat ing he (pni.ons of Peoj.le in other Countries as to the State of moral ad pohtical Jeehng here, and perhaps a Sense of this ought to have induced T r'l!'"!! . ■, 9"^ I 'ovnice, to attempt to put them down by Law. But WJm I' '" ' S"""""^ ""^ '^'"-'f' t'l^ Falsehood and Malevolence of the Scntu len s contained n. those Papers must be generally known. I did not mag.ne this would or could be countenanced, and I apprehended Evil rather ; un"!» ?'." J" ^^'^''r "^' I'"I""tance which Prosecutions instituted by the JcZyfl T '" '""'';''■ 7r *''^' ^^"^''"'-^ "^' »''^'"- 'i''>e I'^'^t Antidote St u^mlnt T ''i'''^ '" /''.' ^'^•'■•^'"•^•it) and j.alpable Want of .Justice in the Statement* themselves. I depended upon the Neglect or marked Disapproba- tion iiy, cluiri^iiiir 1 tlie Sccoiul laiislaiightcr I'. Jarvis was OS were pio- tt't .eceiviiig 3 direct Kvi- lie Coroner's s taken botli een cliarifed ; tli.K'liargcd l'rinci])al in e the I'rose- g no incon- anclioiy Oc- t tiie Time ; lie Trial, by nijjcdcs tlie icrease until I Exhibition e gradually returned to ! than Two to observe le {gradually except with ons of the d, that any lilies, I was be in any • Party had ly Absence. , that both ighout this , and some ed, and the , by a Con- have been this Town, ocicty than tly without ation, have tions natu- Vbuse, not IS, perhaps, it have in e of moral vc induced [.aw. But ice of the 1 did not :)vil rather ited by the t Antidote ice in the isapproba- tion I tion of the Public, for aftbrding the most satisfactory Ueniedy ; ami I I'carcd to call the Papers into Notoriety, and to |)rotract their Kxistence, by the jjolilical Excitement which Prosecutions for Libel usually occasion. So far a's the (Jovern- ment was concerned I felt myself at liberty, in the Absence of anv Order from your Excellency, to use this Discretion; but had any Individual sought Redress by a Criminal Prosecution, and applied either to me or to a Ma"isti-ate or to a Gr nd Jury, he wouUI of course have found the Remedy perfectly open to him. The Individuals, however, who were attacked by these Person's seemed equally inclined to act upon the Principlus 1 have ineiitioneil ; and the Event justified that Course, for in May 1820 the Colcmial Advocate, the I'aper which had been longest established, was evidently about to be discontinued. Your Excellency knows how this Termination was most unlia|)pily anticipated by a Number of young Men, yielding inconsiderately to the Ini|)iilse of Indig- nation at some most atrocious Libels, which, even after the Editor had fled the Country, were published in a Number of the Paper intended (as it was after- wards ascertained) to be the last. The accompanying printed .Statement, verifieil by the AfKdavit of all the Persons concerned in this foolish and unwarrantable Act alluded to, explains the Causes and Circumstances of that illegal and ill-judged Proceeding, whicti revived a Nuisance it was intended to destroy, and which, besides bringing upon the Government the most undeserved Imputations, threw every Advantage that could be desired into the Hands of a Person whom the Violence so impro- perly used was but little likely to injure. Mr. M'Kenzie, the Editor of the Colonial Advocate, knew how to improve these Advantages. The Eight or Nine Persons who, in a riotous Manner, committed a Trespass upon his House, anil threw about and spoiled some of his Types, proceeded in this Breach of the Law without Concealment, and were of course made to answer for the Damage they had coinnr*»ed. The same Remedies, Civil and Criminal, which by tiic Law of England would, in a similar Case, have been open to the Party injured, were open here! Mr. M'Kenzie's Property had been illegally spoiled, and for that he had a Right to Compensation. No personal Violence had been usetl against him or any one ; but the Riot was done by such a Number of Persons, and in such a Manner, that it constituted a Riot, and, as in a Case of Assault and Battery, rendered liie Parties liable to a Criminal Prosecution, as well as to a Civil Action. In such Cases the Prosecutor can pursue either Remedv, or both. \n Option rests with him ; and he is only so far restrained in' the Cho::t of his Alternatives, that the Court of King's Bench will rarely grant him a Criminal Information on his Motion, unless he agrees to relinquisli his f-ivil Remedy. And again, when both Civil and Criminal Proceedings are depending at the same Time, the Court will sometimes stay the one iiW the other is determined ; and it is not unusual, when a Prosecutor upon an Indict- incnt has obtained ample Redress by Civil Action, for the Attorney General, if he deems the double Remedy vexatious, lo enter a Nolle prosequi to the Indictment. The Recourse to the double Remedy is, in Practice, placed under these Restraints ; and it is very reasonably recommended by legal Writers to the Parties injured, that they should first pursue their Civil Remedy to an end, in order that their Claim to a full Cc:npensation in Damages may not be in any Degree prejudiced; becaasc it is not to be supposed that a Jury would give full Damages in a Civil Action against a Defemlant who, upon a Prosecution by the Plaintiff in a Criminal Court, has been already made to pay a Fine to the King for the same Wrong, or perhaps been imprisoned. The Attack upon Mr. M'Kenzie's Press and Types occurred in June 1S2G. Taking legal Advice, he immediately commenced an Action of Trespass against all the Defendants, which was tried in the Month of October following. A Court of Quarter Sessions of the Peace intervened in July, before which it was perfectly competent to Mr. M'Kenzie to have proceeded, if he had desired to prefer also a Criminal Charge. He might have moved in Trinity Term, by his private Counsel, for a Criminal Information ; or lie might, as is the ordinary Course with respect to Felonies, Riots, and Oflences of every Description, have gone at any 'I'ime before a Magistrate for the District, and obtained, like other Prosecutors, a Warrant against the Defendants, who G WOlild -.?»A<«I« I ( -'ti ) would liavc bet-ii baileil to tlie Assizes or the Sessions to answer for their Ofrence. At tlie Sessions the Prosecution would have been conducted by the Prosecutor's own Counsel, and at his own Charge ; at the Assizes it would have been conductc for I do not conceive it to be my Duty, and it has never been my Practice, to invite Complaints for Misdemeanors, or to originate any Prosecution except for such Offences as it is deemed in England to be the peculiar Province of the Attorney General to notice. In all Cases of Felony, or other Offences against the Peace, or against the Person or Property of Individuals, I proceed upon the Informations which liave been taken by the Magistrate ujjon a previous Complaint, and which are put into my Hands for that Purpose ; or upon Presentmen: of tlie Grand Jury, upon a Complaint made to them by any Person desirous of prosecuting ; or upon the Relation of the Party injured, made directly to myself. If a Murder, or other enormous Ofience, weie, for want of a Prosecutor, or from any Difficulty in the Investigation, likely to pass unpunished, I have always, upon Information being gi\en to me, afibrded every Assistance and Facility to Justices or Grand Jiuies in the Discharge of their Functions This View of the Duty of my Office as Attorney General which I have uniformly acted, and I believe it to be correct. Knowledge, that the Three Gentlemen who preceded me in the Office adopted the same Course. In my own Practice, I am confident that One Instance can- not be produced in which I have acted imder a different Sense of my Duty. The Crown Officers of this and of other Colonies conduct all Criminal Prose- cutions, except those cognizable at the Sessions, and thev charge their Fees for conducting them in Accounts against the Government. 1 have ever conceived, that it was my Duty as Attorney General to act ct officio in melt Cases onltj as the Attorney General in England would act in ex qffi' to. is the one upon It is within my ( ) cr for their ictfd by the :es it would the Public, ling himself ir Attorney er Damage eneial, both }r I was not il feel it my alty of their Fine to the erson whose tl could not i ; that tiie td to me as I, 01 if the ; otherwise my Hands, ■ct. Some very 3 Press and of some of Verdict for an Injury upon Oath, Days after gest to the .1 heard the M'Kenzie, expressing lages which leclincd to il Action, ;uartl them I deviated , and it has :o originate d to be the against the ions which [ which are rrand .Fury, cuting ; or a Murder, from any ivays, upon Facility to one upon witiiin my :e adopted lance can- my Duty. inal Prose- ir Fees for to act (\r act in ej- qffi' to. officio. There are here precisely the same Institutions of Justices of tlit- Peace, Coroners, SheriHs, Courts of Quarter Sessions, of Oyer and Terminer anil General (Jaol Delivery, as in England, and with the same Powers and Duties ; every Inhabitant of the Country knows he can have recourse to tiiem. I am not a Magistrate or a Police Ollicer ; and, as to all those Felonies and other Offences wliiih come, in the first Instance, properly luuler tiie ordinary Cog- nizance of Justices and Grand Juries, I consider it my Duty to prosecute them tvhcn the Charge is mad<; not to make the Charge ; to ilo that, in short, upon proper Application, at the Public Charge, which any Harrister would do in England at the Charge of the Prosecutor, or, in some Cases, of the ( 'ountry, I lliink no Man of honourable Feeling could submit to hold the OHice on other Principles, and subject to the Imputations which would he thrown upon him if he were to swell his Accoiuits against the Public by Prosecutions hunted up by himself, which the Parties Injured declined to institute, and which belonged more properly to the Jurisdiction of the Quarter Sessions, by which Court they would be disposed of witiiout ncurring any Charge u|)on the Pro- vincial llevenue. The latter Consideratic.i I have ever felt it rigli! !o keej) so constantly in view, that I imagine no It/stance could be found i.i which I have preferred a Charge at the Assizes for a Riot or Battery, unless the Defenilants, fi.r want of Bail, were in actual Custody, and entitled to be delivered under the Commission of Gaol Delivery ; or unless the Grand Jury, on the Prosecution of the Party, presented the Charge thiMnselves ; or the Justice before whom the Infiirmation had been laid hail deemed the Offence so serious, that he had bound the Parties and Witnesses to atteml at the Assizes. I have known many Instances in which Persons proceciling to abate a Nuisance, or in the Assertion of a Ilight, have so acted as to subject the.n- selves to a Prosecution for a lliot ; but a Criminal Prosecution does bv no Means ordinarily follow a A'iolence of this Description ; and I have sometimes been Counsel for the Plaintiffs in a Civil Action of Trespass founded on such Proceedings ; but I have never, without the Knowledge, and still less against the Wish of the Prosecutor, instituted a Criminal Prosecution for the Misdemeanor, and without any previous Intervention of a Magistrate or Grand Jury. On the contrary, after such a Prosecution had been instituted by the Party, I have sometimes, at his Instance, forborne to proceed in it, and this in Cases which have occurred since that which I am now referring to, as well as before. If I had, in the single Case of Mr. M'Kenzie, departed from my known and uniform Method of proceeding, I know not how I could have vindicated myself consistently from the Imputation of desiring to meet the Wishes of those who had injureil him, at his Expence, and particularly in a Case in wiiich it happened that a Clerk and near Relation of my own was among the Dcti?ndants, fbi- whose Folly in being drawn, by whatever Provocation, into so absiu'd and improper an Act, it was most likely I should find it necessary to j)av. When, after the Verdict was given, yielding a Recompence more than Forty Times over for the Injury committed, I requested the Grand .Jury to send for the Prosecutor, it was because I chose, from the particular Circumstances of this Case, to do what I had not done in any other. He declined to prosecute. It was not to his Discredit tnat he did so. The Grand Jury seemed to conceive it unnecessary, under these Circumstances, to present an Ofl^ence, which at all Events came uniler the ordinary Cognizance of the Quarter Sessions : they at any Rate did not present it ; and I supposed the Matter had endeil with the Civil Action. I have been thus minute in making this Statement to your Excellency, because otherwise what follows could not be understood. Mr. M'Kenzie, having resumed his Press and continued his Paper, did not for some Time dwell much upon the Details of the Outrage, for wiiich he had obtained ample legal Redress. At the Time it ha])pcned several Papers, and amongst others the Canadian Freeman, published by a Mr. Francis Collins, made it the Subject of Remark, and rei)rcsented it in whatever Light they thought would most serve their Cause. But a Year or more had elapsed after the » A«l* I I ( 28 ; the Trial, and as the Ends of Justice had certainly been fidly satisfied, it had ceased to be spoken of, when Mr. M'Kenzie, either finding his Means again failing, or for the Purpose of trying an Appeal to popular Sympathy for some other Object, began to collect and republish in his I'apur and in Pamphlets all the unfounded and exaggerated Statements which he and others had put forth at the Time, and which the Defendants in the Civil Action, then de- pending, had not thought it i)roper to notice, being conscious, |)rol)ably, that by their Conduct, yet unatoned for, they liad subjected themselves to such Attacks. Unfortunately, Mr. Jarvis, who had been tried for the Duel in which he had been engaged in I8I7, and actpiitted, was one of the Parties to the Trespass upon the Press and Types of Mr. M'Kenzie, and one of the Defendants in the Civil Action I have spoken of. Since the fatal Kvent alluded to, he had married the Daughter of the Chief Justiceof this Province, and had several Children ; he had followed for many Years his Profession as a Barrister, and had lived since that unhappy Period, as he had done before, without Reproach, and in the most friendly llelations with an extensive Society, excepting only those from whom the Kvent spoken of had necessarily separated him. Among the Persons whom Mr. M'Kenzie, before the Attack upon his Press, had grossly insulted, was Mr. .larvis, and for what Reason I cannot imagine. He had most wantonly called him a Mur- derer, ailuding to the Transaction upon which he had been tried Eight or Nine Years before; and, excited by so atrocious a Provocation, Mr. Jarvis hastily assembled a few thoughtless young Men, and acted, I believe, the most con- spicuous Part among them in the Outrage committed upon Mr, M'Kenzie's House. He bore without Resistance the Abuse which in)mediately followed this thoughtless Act ; but after the Injury hail been many Times more than compensated, and a Year and more had elapsed since the Trial, the Republi- cation of all the Abuses which had been uttered, with the Addition of much virulent Invective, was scarcely to have been expected. Mr. Jarvis was again designated in j)lain Terms as a Murderer, and Conduct of a very disgracefid and atrocious Kind was ascribed to him, in allusion to the Transaction wliicli had undergone a judicial Investigation before Mr. M'Kenzie came to this Country. To repel the Slanders which had been circulated respecting the Destruction of the Types, Mr. Jarvis published that Statement which I have before referred to, and which contains, in Terms least of all calculated to wound the Feelings of any Person, an Allusion to the Occurrence which Mr. M'Kenzie had inhumanly made the Occasion of charging him with Murder. Not desiring, it seems, to prefer a Criminal Prosecution for a Libel, which must have had the Effect of renewing an Excitement which a Lapse of Years had allayed, Mr. Jarvis took tlie Course of requesting Two Friends to wait upon the Gentlemen who had been the Seconds, with Mr. Collins's Newspaper in their Hand, and to request of them, as an Act of Justice to him, to declare how far the Statements contained in that Paper were consistent with Truth. Upon this Appeal, Mr. Bonlton and Mr. Small, the Seconds, did not hesitate,' it seems, to make a Statement of Facts, wliich Mr. Jarvis was furnished with,' and which he made public, in Vindication of his Character from the Attacks that had been made upon him. This Statement gave rise to the very venomous Abuse from Mr. Collins, the Editor of the Canadian Freeman, which appeared in his Paper of April 3d. The Solicitor General, Mr. Boulton, required me, as Attorney General, to prefer an Indictment upon the First Libel of Mr. Collins ; and if he had not done so, it had become my Duty, under the Instructions of your Excellency, to prosecute that Libel, from the gross Reflections it contained upon the Government, as patronising and encouraging Felons, from its Aspersions upon the Administration of Justice, from its unfeeling Attacks upon the Public Officers of the Colony, whom it implicated, and from its manifest Tendency to provoke a Breach of the Peace, and to further Bloodshed, and to disturb in the most unwarrantable Manner the Peace of Society. On the 7lh April our Lent Assizes commenced. On the lOth I sent before the Grand Jury a Bill on the Libel ; and Mr. Jarvis having gone before the Grand I ( -^9 ) isfied, it liail cleans again !iy lor some 1 Pamphlels crs hail put >n, then de- obahly, that Ivcs to such /hicli he had the Trespass dants in the of the Chief :d for many )y Period, as L'hitions with t spoken of . M'Kenzie, •vis, and for liim a Mur- i^iit or Nine irvis hastily i most con- M'Kenzie's }ly followed more than lie Hepubli- ion of mucli is was again ' disgraceful ictioii wiiicli ame to tiiis Destruction 'ore referred the Feelings Kenzie had vibel, which )se of Years nds to wait Newspaper I, to declare with Truth, lot hesitate, iiislied with, the Attacks y venomous lan, which General, to he had not Excellency, 1 upon the rsions upon the Public t Tendency J disturb in sent before before the Grand Grand Jury to complain of the Libel contained ni the Paper of the Jd April, they made a Presentment upon it, and it became my Duty, in tlii' oi dinars Course, to frame an Imlictment upon that Presentment. I also sent before the Granil Jury a Bill for a very scantlalous Libel of Mr. Collins upon the Lieutenant Governor, in which he had in direct Terms charged his Excellency with Partialitij, Injustice, and Fraud, in not paying a cert; m ,Snni u|)on the Address of the Assembly. This Bill they foiuid ; ami as Mr. Collins, in his Paper of lOth April, (while the Court was sitting,) published a very scandalous Libel against the Grand .Jury, they made a Presentment of that I.ibel also. On the — — Mr. Collins was brought up on the Process which had been issued upon the Two Indictments. Mr. Justice Sherwood presided. The Clerk of Assize was proceeding in the usual Course to arraign the Defen- dant upon one of the Indictments, when he applied to me, through his Counsel, to postpone his Arraigimient for the present, as he had not determined whether he would traverse or not, and would ])relbr not being compelled to decide at that Moment. The Delay was askeil as an Indulgence, and I reailily con- ceded it. Nothing further passed on that Occasion. On the next Day Mr. Justice Willis presided ; and it was the first Occasion in which he had presided at an Assize since his Arrival in the Province. The Court met at lOo'Clock; and while it was opening, I was called into an adjoining Room by a Gentleman of the Bar, who wished to talk with me upon some Civil Suit depending. In a few Minutes one of my Clerks came to me, and said I had better go into Court, that Mr. Collins was making a long Harangue to the Judge. On going into Court I foinid Mr. Collins, the Defendant upon Two Indictments for Libel, certainly of a Character as malignant and unjustifiable as weie ever published, addressing Mr. Justice Willis, apparently in a preiueditated Speech, and it was some time before I could catch the Piuport of his Address. The Language I soon found to be highly opprobrious as it regarded myself in my C)flice of Attorney General. The Defendant thought fit to accuse me of " gross i\nd Jbul I'artialitjj and Oppression;" and, as liie Court evinced no Disposition to interrupt him, I felt it necessary to rise and request to be in- formed by the Judge what was the Object of the Defendant's addressing the Court, 'vhcther he had made any Motion, or had intimated an Intention to make any Application. To this tlie Judge merely replied, " If Mr. Collins is " allowed to proceed I dare say his Object will appear." Mi. Collins did ac- cordingly proceed, and contiuu'nl in Terms of .Abuse to charge me with Mis- conduct. He stated, that I had indicted /lini for Libel, while I allowed the Solicitor General, wlio had confesseil himself guilty of Munler, to remain unprosecuted ; and that I had acted with Partiality in not prosecuting the Persons who, in 182(3, had conunilted the Trespass on the Types of Mr. M'Kenzie. He deman .ed tiiat I should be compelled by the Court to bring these Offenders to Justice before I brought him to Trial for Libel. I in vain remonstrated with the Court, that the Defendant was not on his Trial, nor had he ever been arraigned ; that he seemed merely to be indulging liimself in an Attack upon me as Attorney General, which could not have any bearing upon his own Case even if it were now before a Jury, but which at present was nothing but a most improper Interruption of the Business of the Court, by an Harangue intended to prejudice the Public Mind before he shoidd be put upon his Trial. I added, that in the Matters he had spoken of I was not to be called to account by him, or by any other Defendant, for the Dis- charge of my official Duties with respect to otiier Parties not then before the Court ; that I was ready to account at all Times for my Proceedings as Attorney General to the Government for whom I acted, and to w'-oin I was responsible ; but that I trusted the Court would not sufler a Person whom I merely knew as Defendant upon Bills for Libels of the most disgraceful Kinil, and whose Arraignment upon these Charges had even been postponed, as an Indulgence, at his Request, to address the Court in this irregular Manner, for the mere Object of calumniating me, whose Duty it was to conduct the Prosecutions against him. The Judge, addressing himself to me, said, with some Appear- ance of Temper and Warmth, but without any Expression of Disapprobation as to the Course the Dcti^ndant was pursuing, " that I had not discharjred mv H '" Duty I 9 -^ I 5| -■• » A*^- I I ( •'"> ) " Duty as I'libiic Prosecutor in not iiidictiiif? the IVrsoiis to whom Mr. Collins " had ailiuleil ; that the Crown OIKcers lierc were Public Prosecutors, ami " as.sumeil to tiuMnselvcs the exclusive Management of all Criminal Prosecu- " tions; that there wer" no other Means of punishing,' OHences but through •• the Crown Officers, and that it was my Duty to have prosecuted in the Cases " mentioned." I replied, that his Lordslnp had not |)r()|)urly before him any Infbrmation of Facts upon which he pronounced this Upinion ; that I had discharged all the Duties of Crown Officer fbr nearly .Sixteen Years; that I had alwavs observed tf 10 same Course as in the Case alluded to ; and that this was the first Time a I'ailiire m my Duty had been imputed to me; that my I'redecessois, so fiw as I knew, had always governed tlieinselves by the same'lliiles; that as Attorney General J was responsible to the King's (Jovernment fbr the correct Discharge of my Duty ; that I hi.d governed myself hitherto by my own Judgment of what was right or wrong, and must continue to do so. I denied that the Crown Officers claimed the exclusive Right of conducting all Public Prosecutions ; and stated my own Imiiression to be (though it might be erroneous), that the Crown paid the I';x|)eiices of those Proseciitiims only which were conducted by its Officers, and not of such as its own Officers (kcltiird to prefer; and tliat the I'Lxdusion went no further; that I had never made a Claim of the Kind which his Lordship seemed to supjwse existed. 1 then further explained, that I had always conceived my Duty to he to notice Offences which are commonly called Offences against the State ; and, as to others, to proceed upon Informations and Complaints placed in my Hands by Justices of tlie Peace, and upon all Presentments of Grand Juries ; and further, to afford every Tacihty to Persons who statetf to me their Desire to go befbro Ciraiid Juries to make their Complaints. I added, that in Cases of Injuries to Irdi. viduals or their Properties, such, as Assaults ami Riots, when the Party had MS double Remedy by Action and by Indictment, I always conceived the (hition lay with Inm to proceed criminally or not, as he pleased ; and in such Cases I did not act unless Informations were placed in my Hands, or the Prosecutor desired to be fieard by the Grand Jury ; that if he (iesircil the latter, i saw tiial he was sworn in Court, and sent to the (irand Jury, and of course, if they presented any Offence, I proceeded upon it as Crown Officer. I stated that this had always been my Course, that 1 considered it the right one, and shoiiUl certainly continue to pursue it. The JiKlgc said, " Then I take leave to remark, as a Judge, sitting here " under his Majesty's Commission, that you have never properly discharged " your Duty, and that in the Case mentioned you oiigiit to havt ijiosecuted •" towhichlreplied, "MyLoid, I think differently; I think I have properly " discliargeif my Duty ; and I must !).■ allowed to say, that I think 1 uiuler- " stand that Duty as well as any Judge presiding on the Bench." The Judge rejoined, that the Case should be laid before His Majesty's Government. I further stated, in allusion to the Case which had been referred to, " that " I had merely observed my unvarying Practice, and therefore that no undue " or improper Feeling could be imputed tome; that if I had, on the contrary, " deviated m that Instance from my usual Practi'^e, and preferred a Charge " when the Person injured had declined, it mighc have been imputed to an " ^.nfiur Desire on my Part to interfere with his ('ivil Remedy, by diminishing '• his Damages ; I therefore proceeded in that Case as in all others, and as " I should continue to do, notwithstanding the Opinion which had been " expressed fiom the Bench." The Judge concluded by saying to Mr. Collins, '« Go you before the Grand " Jury, anil if you meet with any Obstruction or Difficulty 1 will see that the " Attorney General affords you every Facility." To which I could not avoid replying that, " That Remark was unnecessary, " as neither Mr. Collins, nor any one else, had ever in any Manner applied' " to me to prosecute for the Offences alluded to ; and that every Facility within " my Power to aflbrd always had been and always would be given in the " Admuustration of Justice, without any such Injunction as his Lordship had " been pleased to express." Thus I I Mr. Collins ciitors, aiui ml I'losccii- Jiit tliroiigli in tiic Cases (wmution oC L^od ail iJie ys <)h:;i'rveil lirst 'I'inie a 1, so iiir as I lis Attornt'y t Disciiarge idginent ol' condijcling (,'li it might iitions only vn Olfici'is never made d. I tiien ce OHl'iiceH 1 others, to Jiistici's of r, to a(li)rd (ore Cirand ies to Itidi. Party had the Option cli Cases I Prosecutor , i saw tliat se, if they stated that and should itting here dischaiged iseented ;" 2 pr()j)erly : 1 untler- riie Judge iient. to, " that no undue 2 contrary, a Charge ited to an iminishing s, and as had been ;lie Grand i that the necessary, :r applied ity within ;n in the dship had Thus ( -il ) ■l'husencourage.l, Mr. Coihns went before the (Irand.lnrv, and nreferred ( on.olatnts against Mr. IJoulton and Mr. .Small lar Mnr.iei ind ■.. linst the lafe Delbndants in the Action of Mr. .M'Ken/.e. lor K.ot, c.lling Mr.M Ken/.e, who had constantly declined prosecuting. .,s a Witness to support /lis Prosecution. ' ' The (iraiid Fury presented the Two Necomis for .Murder, in aidini: and assistuig Mr.Jarvistoslioot Mr.Uidout, hut finuui "//r, yy,//" a.'ainst .Mr hrvis I explamed to them repeatedly, in open Court, that thev oukIu to" make the ( harge sensihle and consistent, hy presenting Mr..larvis for Murder hy sli„„t. rng and the others as Principals in the .Second Degree, according to the Facts; and 1 (ramed the Hill accordingly, because the(;rand .Jury coul.l not rcndarlv lake ( ognizance of tiie former Ac.piittal of Mr. .larvi* ; that was Mattel to be jileaded hy hun afterwards, and to be proved hy the Rcord. Thev refused however, to put Mr. Jarvis again upon his Trial, and found •' //,; W/l " as to him ■ rctinnmgatrueBdl against Mr. Houlton and Mr. .Small, as Principals in the •Second Degree. This they did with apparent Kelnctance ; and after 1 had in answer to a Ilefereiice made to me, iiifbrmed them tiiat, as a mere Ic^al Quos- lion, the Discharge from the Indictment in ISI7, in consequence of no Hill being ret uriied dul not preclude the preferring a Second Charge ; and that the Acipiitta of M r. Jarvis, howcvi it might ultimately aflect the Charge made against the Seconds when it .vas proved upon the Trials, could not now be ii'ificed l)y tlie (»rand Jury. On the next Day a Cieiit! >ian of the Bar moved that Mr. Collins, as the I rosecutor on this Charge, iiught be allowed to conduct the Prosecution from fiat Mage hy his private Counsel, and independentiv of the Crown OfJiccr this Application Mr. Justice Willis answered, by iiitimating that it could be done with my.Assent. Thus appealed to I replied, that 1 luul been made aware of the Intention to make this Applic-tion, and had only not consented fo It privately because 1 preferred that any Steps taken in the Matter should be |)ublic ; and I had resolved, when the Motion should be inaiie. to express my Sentiments explicitly uj-on it, being desirous of the Opportunity of obviatiurr any Misa|)preliension of the Remarks made by me on the precedin liisl'>xculluiicv Sir I". Maitlaiul, K t li A.» /• i Lieuienunt (iovernor. &c. &c, &c Attorney (,eiieral. Inclosiire, No. ,5. Extract from the " Canadian Freeman " of ,Sd April 1S2S. printing Tool of the Ministerialists, and last Prop of ofhcial Cornuition. From that hireling Press Sam has brought out a Pamphlet, intended .as a Justification of^'!:. Killing of Jclm llidoiit, in contradiction of the Statement of "A Relative;" but which, in our ()|)inion, makes had worse, and gives the clearest .-Icknowledgments of the blackest fJuilt. f Sam I ij n ■m Mmm ! I ijum Mny-i, tliitt llii' Statement «>! " A Hiliitivo, " " it triu', ^fmuli/ time him " out itt the Pali III all rcspirtn/ifr, iiiihiil nf all tirilizii/ Siuiiii/ !" Tliis is jiistt what \\i' think .misclvis ; and, iintbrtunattly (or hinisilC aiul his Ati-oiii- phcf, he has aihnittcd ahnost all tlie loading; Features of the Stateiiieiit to be correet and tntr. The very first Nlatenient ol' '• A Uelativi'," the I'oinf iipoii whieli the wliok' (Question hin^'es, the Faet wliieh tii>t led U> the Death ol yomiu Mr. Uidont, iianiel), the vilhiiiioiis, tyrannieal, and iin|)r()\>iked Assault upon him liy his Mayer, in his own Otlice, surroiiiuiv-d hy his Clerks is oxer- looked hy .(arvis ill his DeCeiu'i^ ; lie dare not attempt \n eontradiet it. lie admits, then, iiy not eoiitriulictinj,' this I'art of the Statement, that he wi^s the first A^f^ressor. 'I'hat he vsas afterwards the first to ehallenge is admitted hy all. That he shot down the Hoy, standing at the Distaiiee i){' liaht I'arcs.xiith on impli/ Pis/iil in his I lain!, he admits; and what does he eontradiet r* Why, that llenry ,F. Iloiilton, instead of being 'I'wenty-eight Years of Age, was only Three Weeks past Twcnty-seven I A fine Ajiology, indeed, for the IHood dl John Hido'it! — the DiUerenee of better than Kleven Months in the Age of a Man between Twenty- seven niid 'I'wenty-eight ! ! He denies also that he used the rntHanly l.angimge attributed to him in the Field; and v.e now believe, from a Conversation with a (ieiitleinan who has a good Right to know the Truth, that he did not; this, liowevcr, is of little C'onseijiienee. Ihit in the same Conversation wc learnt a Fact, that makes Dowerlnlly against him and Honlton, of which " A Relative "seems not to have lieen aware when he made his Statement; \VM\\c\y, that Mr. Ridmtt's Pistol, l>i'in liiin in tlu> 1 who lias a is of little that makes not to have mt's Pistol, IS JLiing his enhring the ch tiirovvs u \ Relative." it a Man mi of the Laws , that " the \i() Stumps ! Tiio hchind \\ a I'osilion ere, too, at 'lay Why mall, being ton, having re that tiie e he j)laeeil hereii with ed them to for it ; but hoosing, or /is says the uest of the round that "or a green -ife, to be a Thirst for t from his vis act as a rior ? Did have done? )W, Itidout, r Choice of u, go back e, in taking \'s, shov/ a imself had Disposition her ? — No. he II. e hear that uas u^^ Stat, of I'repu'ation. an.l pal.. ,,h n.,,lh im,.|f, In-tore [.tr. I empt; hsto iH.tore him. He knew iIh' llse uf his W.Mpun.as a IJnt.lier .loes ins Knite ; he knew that with long Practi.v an.! a Ht..a.K Ilan,|, |h, ,,,,,1.1 not ni.ssa N ark witinn Eight /',/,-, v. The Heart's Hloo.l wa's his Obj.et _ t n he anned_(or that h. .h.rsle.l _ and that he shed ' li.it fhuiingthat ih- ci,, was hitter, he .lash.d it (r.mi his Lip., and ii.stantiv exclaiine.l. " .MyfJ,,,!' ; whatlme I .lone?' ()h',..,,M,immate llyp.,erisy ! Oh M.lasphnnous .Appeal • ..which that (,od has well replie.l, " //7,„., shnl.lrth the kn„l „l m],„ I,„ " Miiii shall his lllnixl In- shed '" .''•"". w/ The leading IWts in the StUement of ' ,\ Uelative" being thus frcelv n.lmilted, lleni.N Honlton and James Fitzgibbon are called in to contradict minor ,V"tements, of littl.. or no Consecp.ence. in or.UT to make the Thin. ...It, what they are nieased to call it, " a hilwl. " lh,t wh.. are thev ? Why he one an Accompfice in .larvis's Crime; the „th..r a Husv„,..lv, who knows nothing ot the Matter, and merely pledges his Wor.l for' the .Stat, nients .,1 ollK-rs-a standing Volnnt..er in the Caus.. of ..(Hcial Corruption, wherever he Services o» such a Syconhant may be re.piired. Supposing, then, that lese lu. \V.tness..s contra.licte.l a leading Fact in the'statement of •. A He lative. (which tlu;y do not. wliile they have exposed their own Weakness,) IS there a Man in Lpj.er Canada, save their <.wn tyra. nical Faction, wh. wou d believe a Word that s) ould fall fro,,, their Lips ? We think not. Henrv Moulton, as we guess, (or .larvis himself,) is also ..sposing their own Side, iii Careys Observer, under the ill-chosen Signature ".Justice." Hut wc can assure him that he has got into mudily Water, an.l the m..re i-e stirs it the worse (or hiinselt and his Friend. " Justice " is such a silly Writer, however that we see iiothiiig in his Productions w..rth Notice. Colonel M'.Sycophant says, "Indeed I think it due to the Community, that every Man should ..„„ e.xert himsell to protect individual Character from the At.acks..f imprin. cipled and w.cke.1 Men." We suppose it was this charitable Disposition of h,. I oloiiel that led him to beg Money to protect tiie Desperado in .niestion trom the Operation of the Lasv, alter" the Community " had been dismace.l and insu tei by t he Gimsness of his Outrage ! As Charity begins at H<.ine we would advise the Colonel to look to his own Character , an.l can assure him' It Ik, ..Illy knew how it stands in the Kyes of the Public as well as we do. he woiilii not so often introduce it unnecessarily to Public Notice. The Attorney General sent one ..f his Nephews t.. i.tirchase Two Papers at our Office containing the .Statement of" A Relative," with a View to prosecute lor a Lihcl What ! a Libel to call that Murder which the Law of the Land dec ares to be such !— A Libel to say that itwas murderous i,. c.mi.el a Striplii,.. of iMghteen Years to stand unarmed within Eight Paces of an experienced Marksman to be shot down coolly and .leliberateiy ! - A Libel to say that tli.- Desijerado who, having first .iipt his Hands in human Gore, and afterwards put himself at the Hea.i of a lawless Rand of Rioters to break Houses an.l destroy Proj.erty, even at the Risk of shedding more I{loo.l, ought to be scouted f: on. .Society ! - A Libel to say that the Autiu.rities who protect and patronize such Characters, ought to be protested against by every loyal Man • — A Libel, in fact, for a free Press to lash Immorality and Vice of the most flagitious (haracter! If this be Mr. Attorney (Jeneral Robinson's Ideas of IMKl, we will let hmi know, when he brings the " Freeman" into Court, that he IS mistaken and convince him of the Necessity, as Kitt Hagerman says, of coming int.. Court uith clean Hands. If this be Libel ; if Despera.loes such as Jarvis can trample upon the Lives and Pn.perty of the Pe.'ple with the iatronage and Protection of Men in Power luufer the Administrati.m of Sir 1 ercgrinc Maitland ; and that il is a Libel in the Press to arraign them before the Bar o Public Opinion ; we may bit! good-bye to the Liberty of the Press -good-bye to the Rights of the People -goofl-bve to all Security either of Person or Property. " ^ I V A a1* I ( ao ) Inclosiiie, No. (». Statement ol Facts relating,' to tlie Trespass on the Printing Press in tin I'ossessiori ..i Mr. William Lyon M'Kenzie, in June IH'26. Addressed to the Publk' generally, and particularly to the .Subscribers and Stii)- porters of the Colonial Advocate. PltEFACK. In presenting to the Public a .Statement of Facts relating to the Trespass committed in IH»6 on the Printing Press at that Time iu the Possession of Mr. Uilham Lyon M'Kenzie, and candidly declaring and avowing the Motives which influenced the Persons concerned in that Act, I feel it necessary as I ain connected with the Government by an Office, however unimportan't to offer respectfully, to his Excellency the Lieutenant Governor an Apol'o-ry for the Liberty I have taken in presuming to make use of his Name, or the Names of Persons lorming Members of his Government, without first obtaining his I ermission, or I'vcii making him aware of my Intention. But the Editor of the Colonial Advocate, having lately thought proper by representing, in his usual .Style, .Statements relating to the Injury committed upon his Property by myself and a few others, in Language which could not have proceeded from any M.nd not callous to Truth and devoid of every honourable and virtuous Feeling, with the sole View of exciting Public Indi-r- nation against myself and Companions, and involving the Government in°a .Susi)icion. created by his own malignant Imagination, that they were the Con- trivers and Instigators of the Act he complains of, I cannot, in Justice to myseif,or to those implicated through my Indiscretion, remain longer silent and qu.etly witness this Second Attempt at Imposition, without an Effort to counteract its wicked and mischievous Tendency, by what I declare on my Honour, and what is known to Eight or Nine other Persons concerned with me, to be a true, faithful, and iingarnished Statement of every thine that occurred relating to that hasty a.id inconsiderate Act. I had once before made up my Mind to give to the Public my Sentiments on tins Subject ; but I am almost ashamed to confess, tliat I was deterred, or rather restrained, by the Conviction that the Editor of the Advocate, and his l-eilow-labourur the Lrcenian, would represent me, as they had done before, to be acting under the Direction or with the Knowledge or Sanction ot the Executive Government, ami consequently, according to their Doctrine unworthy of Belief ; and although I then felt, and now do feel, the perfect Absurdity of such a Charge, and strongly condemn an Apprehension which may be by others pronounced very unworthy and unjust towards the Public the Currency which the foulest and most unfounded Attacks upon the Cha' racter and Reputation of some of our oldest and most respectable Inhabitants seemed to obtain throughout the Province, and the Avidity with which thev were sought after and read by those whose Abilities and Station in Society might have taught them better, made me imagine that the Time had not yet arrived when I could hope for a cool, dispassionate, and unbiassed Opinion of my Conduct, and the Motives which governed it. . \ 'l"^ sufficient Experience of the uncompromising Looseness of Mr. M'Ken- zie s Disposition, and could not doubt that he would descend to the mcane. and most contemptible Artifices, and use the most strenuous Exertions, to para izc the Effect which a candid and ingenuous Relation of Facts was calcu- lated to produce on the Minds of a generous and impartial Public : but as he appeared to think that he had already succeeded in establishing a Belief tint the Government had incited a Party of young Men to commit a Trespass on Ills 1 roperty, it was not altogether improbable or unreasonable to suppose that a similar Artifice would be practised by him on the Credulity of' he same Persons, and with equal Success. , , ^"'''-T'' JU' '"°f^ V''\" P-'o^^"''''-' that he will now resort to this Stratagem to blunt the Effect which the following Pages may have upon his Subicribers: for I think they will hnd themselves not a little at fault when they reflect upon ami compare the Statements herein set forth, verified and strengthened as they are by a solemn Affidavit of their Truth, with the innnmerable and extra- \arbear on such Principles, or to forbear at all, 1 will not presume to say. My individual Opinion is, that the Laws should not have been allowed to be insulted so long and so grosslv with Impunity; and I believe that the Forbearance shewn has only encouraged and increased an J'".vil that other Measures would have cured. Put no Part of the Responsibility rests with me ; what I desire to give to the Public is merely a Statement oi Facts. Finding, it would seem, that his Paper, conducted as it was, was not very profitable, he began, in the Spring ofl.S'Jd, to shew Symptoms of discontinuing it ; and if I remember right, for I have no File of his Papers betbre mo, he threw out several Hints of his Intention to do so, complaining of the Want of Zeal and Interest in the People, which prevented " their supportini: an iiidc- " pendent Prcsa ;" butjierceiving, as I hope I may more truly rej/iesent it, that the Morality and honest Principles of the People prevented their contributing to support any Man in obtaining a Living by inventing and disseminating Slamler. Nevertheless, before Mr. M'Kenzie could make up bis Mind to abandon his Employment, and endeavour to earn his Living by honest Inthistry, he was determined to make one or two ilesperate Fflbi to draw the uiii\ersal Attention of the Public upon him. Perhaps his Hope was, that he shoii'd com- pel the Government to prosecute him, by the unexampled Sciu-rility of his Language; or perhaps he expected to gain a rather less Degree of Notoriety, by enraging Individuals, and jirovoking them to a Prosecution, which ho i)t' course would represent as Persecution ; or lie may have meant principally to niakj; an Experiment, whether by making his Columns the Vehicle of the grossest ami coarsest Slanilers, and of the most malicious Lies, against the living and the dead, against Men and Women, the powerful anil the helpless, he should not at least secure the Patronage of all those whose Minds and Hearts were so utterly depraved as to rejoice in this Degradation of Human Nature, and thus draw a Subsistence from some Source, no Alatter how polluted. Under the Influence of some or all of these Motives, be began, in the Month of May 18'^6, to send into the World a Series of Libels, unequalled for their disgusting Ribaldry, for their hardened Insolence, and for their brutal and unfeeling Cruelty ; and these Libels were directed not merely against Persons in Public Situations, who bad borne his Slander for Years with silent Contempt, but against Persons unknown in Public Life, and unconnected with Politics, against marrii d W^oinen, against aged Wido'vs, and even against our Friends who had been long dead, and who, while they lived, were universally beloved and respected. Many of the foul Aspersions thus published to the World had no Connection with any Public Measure; the Misfortune, the Poverty, the former Occupations, the personal Appearance of Inilividuals, were all made alike the Objects of unfeeling and impious Abuse, regardless of the Pain which the wanton Calumny might bring to the Bosoms of Relations and Frieiuls. To make the Insolence the more intolerable, no Pains were taken to avoid Meiifiuii of Names ; on the contrary, they were given at full Length ; no Blanks, no Asterisks; all set down plainly, to amuse the Malice of the World, and to insure the whole Mass of unmanly Scandal being as fully understood and applied Abroad, as it might otherwise only have been among ourselves. I canU' t reconcile it to myself to be the Means of giving a Second Publica- tion of tl .'se horriil Papers, which, I am sure, it has been the Endeavour of all good Alen to forget ; and, therefore I will not, for the Sake of justifying my own Conduct more plainly, jiollule tiie Public Eye with placing before them any Part of these Productions, which no Language can descril>e. But I call upon any Man who may have preserved a File of' the Colonial Advocate to turn to the Number published oi; the IStli May 182(1, as well as to those immediately preceding and fbllowinj.' it, and then inform mo, if he can, in what Country, and at what Time, the Feeliiigs of a whole Society weie so barbarously and '# <* .» A „, T ■**'«»• j.!^ I ( 40 ) and cruellv outraged as they were by this Man, whom no one hail injured, whom, inileed, many of those whom lie has thus insulted did not know by Sight, and of whose Kxistence even, it is very probable, some of the Persons he abused were unconscious. Need I say what must have been the Feelings of those thus injured, and what ought to have been the Feelings of all Mankind, against the Individual who, for the Chance of making a few Pounds by such a Trade, rather than by the honest Exertions of his Mind and Hands, could thus scatter his base Calumnies, to excite the Hatred of the malignant and the Ridicule of the unfeeling, to inflict Pain and Injury for wiiich he could never atone ? If I speak warmly on this Subject, it is because I am myself the Instance of the most cruel Persecution of this heartless Man. I never had with him either Transaction or Dispute of any Kind. I held no Situation that made me responsible for any Act of the Government, or that gave me any Share in their Measures. I am not, and never was, a Politician ; not having either tiie Station or the Disposition, and not pretending to the Talent that leads a Person into that Path. If any Merit belongs to me for it, I had, like almost every other Person, allowed his slanderous Attacks upon others and myself to pass unnoticed. I never condescended to be the Author of a Line in Print, in which he or his Colonial Advocate was spoken of. But this signified nothing ; I was connected with Persons who served the Government J in an humble Office I had the Honour to serve it myself; I was, as every Man of Character is, the Friend of those Gentlemen whom he thought it his Interest to abuse most ; and I had a Mother and a Wife whose Feelings he might wound, and Children whose Love and Respect for their Father might make them one Day feel their Share of the Pain to which they could not yet be sensible. These were, in Mr. M'Kenzie's Eyes, sufficient Reasons, for I can fancy no other, for stigmatizing me in his Paper as a Murderer ; in his Paper which he boasted of sending to all Corners of the World, and which you all know he sent to all who would receive it, and to Hundreds who would not. In making this Charge, he knew he should be understood, by all who read his Paper here, to be alluding to an Occurrence, the most distressing of my Life, which he has within these few Days unreservedly^ '•ecurred to in his Paper, endeavouring to attach to it every Feeling of Horror for which Falsehood could invent a Motive. I will not, I cannot, for Feeling forbids me, dwell upon the Circumstances of a Misfortune which the Heart of no Man should have suffered him wantonly to recall to the Recollection of those whose Affliction may have been at least alleviated by Time; it is not necessary I should. Conscious that I acted under a fatal Necessity, which the Condition of Human Society imposes, I surrendered myself unhesitatingly to the Officers of Justice ; I endured Imprisonment, unmitigated by Favour ; 1 underwent a Public Trial, under Circumstances of peculiar Disadvantage ; and was readily acquitted by a Jury of my Countrymen. The whole melancholy Story has been long given to the World. I will not do such Injustice to myself, or such Violence to the best Feelings of Mankind, as affect to be without that lasting Sensation of Regret which the greatest of Misfortunes has unavoidably occasioned, and which it is my Lot, as it has been the Lot of many with whom I cannot presume to compare myself, to bear and to lament. After Mr. M'Kenzie had, in defiance of all Shame and of every Feeling of Restraint, sent into the World the very disgraceful Paper I have alluded to, and in particular that of the 18tli of May 1826, which I have already men- tioned, he seemed to consider it a very necessary Measure of Prudence to keep himself as much as possible from the View and Contact of the Society which he had insulted. He could not indeed have walked into the Street without meeting the Husband, Son, o"- Brother of some Female whose Feelings he had outraged ; and scarcely, indeed, without meeting some one of the numerous Individuals whose Characters he had wantonly attacked, with an equal Di-'-egard of Decency and Trutii. I only I only ( 41 ) 1 only desire any IVrson to tnin to his I'apei ot the LStli May 18'^n, ami, having road it as dehherately as his I'atience will allow him, to" ask liimselt', whether it is not expecting too much from the Members of any Communitv on Earth, to suppose that the Person who luul dareil to propagate these odious Slanders could, while the Jlccollcction oi'theni was fresii in the Minds of those he had insulted, walk the public Streets with Impunity, enjoying witii a malignant Smile the Pain he had inflicted. My Belief is, that lie "thouglit and felt it to be unsafe to make the Experiment, for he could hardly have done otherwise than expect the same Chastisement here, which, for nuieh less Provocation, he had more tlian once received in other Parts of the Province. The Public Feeling indeed was immediately expressed, and very unetiuivo- cally. Letters from those who had formerly befriended him were inserted in other Newspapers, declaring their Abhorrence of his Conduct ; Subscribers w ithdrew their Names ; his Papers were returned ; and those who had been liis Agents were anxious to rid themselves of the Discredit of having any Connection with such a Paper, or such a Person, by publicly renouncing their Agency. It was currently reported that his Creditors, seeing that his Situation had become hopeless, had, by his Consent, taken Po.ssession of the Press, and th.at he had given up his Establishment, and intended to take leave of the Province. I believe now that it was so ; that the Experiment he liad made was indeed about to end in the Way most creditable to the Country ; that tlie Want of Public Patronage, and the decided Expression of Public Detestation, had really put an End to Mr. M'Kenzie's slanderous Career. In common with others, I expected such a Result, and did not believe that another Paper would have issued from the Press of the Colonial Advocate. No one has greater Reason tlian myself to wish that not another had, for in that Case my first Notice of Mr. M'Kenzie's Press would have been spared, as well as this — the last, I trust, which I shall ever feel it necessary to take of him, or of his Trade of Cahunny, which he has since driven, and which he, no doubt, will continue to drive, so long as it suits his Purpose, and he is permitted to go unpunished. But the Rar ^ur of Mr. M'Kenzie's Mind was not yet satisfied. He had, up to the Moment of his hasty Departure, shot his poisoned Arrows where he pleased ; he had been called to no Account ; he had had every thing his own Way ; and even when he left his Trade and this Country together, he yielded only to a Necessity of his own creating. But what was his last Resource ? He went to Lewistown, to be jure, and took up his Residence in the United States; but he left as managing Journeyman at York, a Person who had some Years ago been convicted of a seditious Libel, and pardoned upon his earnest Assurance, no doubt, of Repentance ; and in the Hands of this Man, and Two or Three Apprentices, the Press was still left, to usher into the World, under the Conduct of no Person apparently responsible, such Falsehoods as Mr. M'Kenzie, now out of the Reach of Justice, might choose to send them from a Foreign Country. When the first Number that was printed under these extraordinary Circum- stances made its Appearance, it is not to be wondered that all had not Patience under such an Abuse. Mr. M'Kenzie has affected to record the Eighth Day of June as a Sort of Era in this Province, because it was signalized by a Trespass on a Press, which, in his Hands, had been used only to destroy whatever was most valuable in public or private Life ; and which he had so abused, that he had actually accomplished with it, at last, his own Destruction. The Facts have all been detailed on Oath in a Court of Justice ; they have since been trumpetted forth with more or less Exaggeration in the Newspapers of the Province. There never was less Room for Misrepresentation or Doubt. Whatever was done was done openly ; there was neither an Attempt or Wish to conceal a single Particular of the Transaction. I can all be told in a few Words. In Company with Eight or Nine Persons, most of them, perhaps all of them, younger than myself, I went to the Office of the Advocate at about Halt- past Six o'clock in the Afternoon, with the Determination to abate an intoler- L able *1 A^^tilP^ I ( 'J^ ) able Nuisance ; with a pertect Readiness to al)iilc the Consequences, hut, 1 will freely grant, without having reflected suHiciently upon them. The I'ress was overturned; tiie Types were scattered al)out, and some Portion of tliem, unquestional)ly, lost, thrown away, and destroyed. No personal Violence was offered to any Hndy, nor was any intended; thougli I do not deny, that if Resistance h '\ K :'n made, under the Influence of the Feelings whicli actuated myself and ni_ ' r- npanions, our Intentions would probahly have i)een never- theless pcrscve L.. in. As it was, the Extent of the Injury was what I have described, anil nothing more. I do not pretend to be able to estimate the Loss correctly, (not tiie Loss of Mr. M'Kenzie, for it turns out that the I'ress was really no longer his,) but I have heard others state, and I fully believe it, that Fifty Pounds, and j)erhaps less, would have |)aid the whole Loss he had sustained. The I'ress was soon afterwards in Operation again, and, I imagine, without any very great Expence in Materials or Repairs. An Expression of Indignation, rather than lU liberate Destruction, was the Purpose of our Attack. In either Point of View, 1 admit its Impropriety, so fiir as Society is concerned, and still more its Folly. Of all that followed, the Pidjlic are aware. Of course, Mr. M'Kenzie, as a Moment's Reflection might have led us to expect, came back to the Province, delighted with his Success. lie had at length succeeded in producing such an Efiect as I am satisfied he had been long contemplating. He had, on the one Hand, a few inconsiderate Individuals on whom he could wreak his Vengeance, for an Injury little more than imaginary, while on the other he coulil make it answer the Purpose of his Politics, by affecting to believe, that the Government, or any Person whom he chose to traduce, had been the Contrivers of this hasty and thoughtless Act. The Loss, in point of fact, did not fall upon him; but for all that, he now might assume the Language of Complaint, represent himself as persecuted, and, by my Imprudence, and the Imprudence of others associated with me, he had a straight Road before him foi- repairing his broken Fortunes. We were all known, and were some of us responsible; and it was not long before an Action brought against us by Mr. M'Kenzie in jf 2,000 Damages, shewed pretty plainly his Conviction that he had at last brought his Press and Types to good Market. His Creditors, it is well known, rejoiced with him, and they had Reason. In the meantime, and up to the Moment of the Trial, Mr. M'Kenzie was to be seen traversing every Corner of the District, spreading the Story of " /lis " urong.'!." — His wrongs indeed ! ! the •cro/ig.s of him who, in almost every Paper that he published with that Press, inflicted, without Provocation, without other possible Motive than Malice, Envy, or Hopes of Gain, Injuries to Characters and Feelings which no Money could repair. He took' his Stand at the Corners of the principal Streets leading into the Town, in order to catch the People of the Country as they passed, and to qualify them by his Harangues, of a Piece, no doubt, with the Statements in his Papers, to discharge coulljj and mpartiaUjj the Duty of Jurors in his own Case at the approaching Assizes, and in Iiope that if they should not be chosen they might at least perform the friendlv Lask of instructing their Neighbours. His Counsel at the Trial thought it neither proper nor prudent to give, by his Assertions, any Countenance to the base Falsehoods which Mr. M'Kenzie liad uttered for the Purpose of implicating the Government, and various official Characters, in a Transaction of which the Defendants alone were the Authors ; but the Wrongs, the Losses, the Sufferings of the PlaintiflT, were made the Ground of an Appeal to the Compassion of the Jury ; and they were called on to prove their Indignation against an Outrage, of which the Circumstances were of course painted with the strongest Colouring by the Counsel, while the Provocation, which no Language conld exaggerate, was kept out of View. It was proved on the Trial, by Mr. M'Kenzie's own Witnesses, that the general Tenor of his Paper wis scandalous and scurrilous ; and the Counsel for the Defence, in Language which must have carried Conviction to every candid Mind, shewed it to be clear and certain that, in the first place, Ml. M'Kenzie had sustained no actual Damage, and that if he had, it was to be charged solely to his own Misconduct, and to Provocations more aggravated than had ever before been endured ; and that the Peace of Society having been ( 1-3 ) been infringed, and the Possessions and I'lupeify ol an Individual trisnassed upon, some Damages must of course be given ; jet, iftiiey wero liiuited either fo tlie Amount of the Loss wliich Mr. M'Kenzie had siiflercd or of the Keeompence which his Conduct deserved, they must I)e small indeed Ihe plain Fact is, that the ress, in Mr. M'Kenzie's Hands, had hocome v;orthless, and was no Loss to him. When he abandonetl it, it was left to his Creditors ; the Loss of it, therefore, as to Press and Types (had it amounted to £M), was in effect their Less, and not his. The Loss of the Opportunity of using such an Lngine of Malice and Falsehood was in reality no Loss to him or them ; for while he had used it, unmolested and unrestrained either by l construe the I'oigiveness or Forbearance of (Jovernment (after we had suflered for our Indiscretion) into an Approbation of the Ac. The Object of such Insinuations IS as evident as its Injustice. He must think meanly of the Hearts and Minds of his Readers, on whom he endeavours to impress such groundless Suspicions. While he has been laboi-ng to produce this Impression, which he knows to be false, I and the o' ..s whom be was prosecuting at Law have always felt that our Case was most unfortunately prejudiced, and our Trial inevented from being equal and dispassionate, by the Step which his Excellency the Lieutenant Governor thought it proper to take, in dismissing Mr. Lyons from being a Clerk in his OfHce, and thereby pronouncing, in the strongest Icrms his Condemnation of an Act which was the Subject of a Lawsuit depending against us. m^Ht^'l'*^ ^''•'^ Artifice of attem|:ng to throw Suspicion on the Government, Mr. M Kenzie next attempts to console himself fbr his Disappointment in not seeing our Rum complete, as well as his own Fortune established, by stating tliat the extravagant Verdict of the Jury, which he hoped was calculated to ruin ourselves and Families, was paid wholly by Officers of the Government, and by certain Individuals whose Characters and Feelings he had cruelly out- raged, and by pretending, that having done this, they bad thereby proved not merely that they approved of the Act, but that they had instigated and contrived it. I have on my Part to assure the Public, that so far from being nulemnihed by the Contributions which from various Motives were made for "in- Relief, the Burthen fell heavily upon such of us us had the Means of paying any thing ; and I affirm, that the Share of the Verdict which I myself had 1 r^ . ■»' * *i». I I had to ilefray, from no very abundant Means, was sucli, that if Mr. M'Ki'iizii- had made as niucli clear Profit by Ins Press, during the ^vhole Time lie has cm|)loyeditin tile Work of Detraction, he would not iiavu found it r\eeessarv to leave the Concert., and abandon it to iiis Creditors. With tiiis simple Pact before the Public, I will ask, upon what Calculation did the Jury found their Verdict? I have also to assure Mr. M'Kenzie, rather than the Public (li)r many of the latter already know the Fact), that among the Contributors to the Payment of the Verdict were many, h'>tii Men and Women, whose Names had never been made the To|)ics of his .Slander, and who, living in dilU'rent I'arts of the Province, and having no Reason for personal Resentment against him, yet felt that the Cause was that of Society in general, and voluntarily ottered to bear their Share in the Consequences of a pardonable Imprudence, committed under the Influence of a most unpardonable Provocation,— so general was the Scandal excited by Mr. APKenzie's Paper ! As to the K.ea that those who contributed to our Relief approved of the Act, it is hariily deserving of a serious Refutation. In point '4' fact, both I and my Companions had the Mortification to find that no or ipproved of an Act, the Impolicy of which, on every Account, (to say nothiiig of its bad Tendency as an Example,) was too eviilent not to be seen by every body, and by ourselves as well as others, as soon as we reflected upon it. No Persons certainly had more Reaso.. 'o regret or condemn it, and none, I am persuaded, did more justly or more heartily condemn it, than the very Persons whom Mr. M'Kenzie would insinuate (though he well knows better) to have given it their Countenance. It is true that some Persons seemed to think it reprehensible, chiefly as u Breach of the Laws, and others as attbrding an evident Triumph and Advantage to a worthless Person. All concurred in censuring and regretting tlu! Trans- action from the Moment it was known ; and if we had been unassisted, exce|»t by those who thought we hud done wisely, Mr. M'Kenzie's malignant Wishes might have been gratified to the utmost. Another Act to which Mr. M'Kenzie has resorted, for the Purpose of raising a Prejudice against us, and at the same Time injuring the Government, is his insinuating that we had Favour shewn us in not being prosecuted criminally^ for the Act, as well as being made to pay more than Ten Times the Value of the Property which we overturned and threw about. We went, without Disguise or Concealment of any Kind, and in open Day, to the Premises of Mr. M'Kenzie, and did what I have stated, and nothing more. We were all known, and immediately prosecuted by him for Damages, There was nothing to investigate ; every thing was known ; and it was for Mr. M'Kenzie to determine whether, besides trying to fill his Pocket with Damages, he should also have us brought up before the Sessions or Assizes, and punished in another Way. If it is the Duty of the Government, or of Crown Officers, to prosecute criminally for every Trespass done to Individuals, whether those Individuals complain of it or not, I think I have a Right to ask, why the Crown Officers have allowed Mr. M'Kenzie to call mc a Murderer, another Person a Shoe- black, and another a Beggar, in his Newspaper, as often as he pleases, and to abuse, in the most oflensive Manner, not only the whole Magistracy o'' the District in a Body, but every Individual, both Male and Female, whom he chooses to make the Object of his Malice ? I think their Character is as dear to them, and mine to me, as the old Press and Types which Mr. M'Kenzie knows he had never paid for, could possibly be to him. I know if I complain, or if any other Person sliorld complain of Mr. M'Kenzie's Libels, the Grand Juries must notice them, ana the Attorney General must conduct the Prose- cution ; but inasmuch as we have not thought it worth our while to do so, Mr. M'Kenzie has gone unpunished by the Public, although he has not, as we were forced to do, made any Recompenceio the individuals for the Injuries he and his Press had inflicted. But People will know better what to think of these Insinuations and Complaints of Mr. M'Kenzie, when 1 state to them, as I now do, that the Defendants were, above all Things, anxious that they should have been pro- secuted M'Ki'iizif line 111- lias i'0(,'ssaiy to iniplu r'uL't IoiiikI tliiir I'liblic (for I'iltiitors to losc Names ill (lifil'reiit L'lit against voluntarily iipnidcMicc, -so gciiicral . that those erviiig of a ion to find ccoiint, (to t not to be I'c refiuctud , and none, n till! very s better) to liiefly as a Advantage tlu! Trans- tt'd, exce|)t ant Wishes o of raising lent, is his criminally le Value of open Day, lid nothing r Damages. it was for *ocket with or Assizes, prosecute Individuals wn Officers son a Shoe- ises, and to racy o*' the , whom lie T is as dear •. M'Kcnzie 1 complain, , the Grand the Prose- e to do so, I not, as we Injuries he jations and 0, that the ; been pro- secuted seciiti'd (■riiiiiiiitily Ity the (iiaiid ,Jui\, hiiient woi'' ' have pievi'iiti'd the Jiirv from giving as laim' Daniag.s in Ml. M'Kenzif j .. i they were (lis;(|)poiiited (anil t!ie Ciowii Otiicers know it) that they (lid not think propiT in tin-. ( ase, any more than in other Cases of 'J'lespass eominitted against the Person or Propeity of an liuliviiliial. to inteifeic uncalled <()r by that Individual, who knew the" Aggressors, and bad ciioseii bis Hemedy against them. Onr Counsel stated very truly, at the Trial, the Handle that Mr. M'Keiizie would have made, and the M()'ti\es which he would have imputed to such a Departure, in his Case, from the ordinary Forms of rroeeeding, I5iil what is best of all, Mr. M'Kenzie lias, within tliesi'tew Days, conlessed in his I'aper that the (i rand Jury, bearing the Kvidence given 'in Court, did notice the Transaction so fir, that they sent for him to their Uoom, and only forbore to proceed i.;)<)n bis Com|ilaiiit, because be e.\prcs>ly deeliiieil to prosecute, allegirg that he iboiight the Civil Action was Punishment enough. Hut no sooner has Mr. M'Ken/ie pockcleil his .i(i-J,5, and applied a small Part of it in re])airiiig the Injury done to bis Press, and the rest to his other Purposes, than be resumes his Trade of .Slander, and abuses the Grand Jury and the Court altogether, because we weri' not indicted, aitbough be tells us himself, that be was expressly ajipiied to, and declined to prosecute. I shall only say of this, that it is like Mr. M'Kenzie. As to the Amount of Damages awarded, I have no Inclination to say much on the Subject, i> r do I tiiiiik I need. It is but Justice to .Mr. M'Kenzie's Counsel, however, to say, that they resorted to no unfair or unwoitby .'Weans to inflame or prejudice the Public." The Jury have by Law the Discietivjii of nieasiiriiig the Damages, and it would be wasting Time to say much of tiie .Manner in which they have exercised it. I have no ^\■isil to do more tiiau to observe, that fi)r Insults far less aggravating than abound in Mr. M'Kenzie's Pajier of the ISth May 18'J(j, he is stated to have been Twice horse-whipped in diflereiit Parts of the Province, and, for that particular Paper, to have been hung in Klligy at Kingston and at Ancastcr. Of these (hitrages, be has thought it prudent to take no notice. Had I, or any other Person, whom Mr. M-'lenziebad grossly libelled in that Paper, met him in the .Street, and chastised on the .S|)ot as he descrveil, I know not what Damages he might have succeciled in obtaining here ; but we have all read enough of such Proceedings in other Countries, to know that bis Chance of .Sixpence Damages with an English Jury, who should have beard bis Libels read, would have been at least doubtful. IJy what Law, or upon what Prin- ciple it is, that the Property of a Kufiian is more sacred than bis Person, I am at a Loss to understanil. JUit I have done with Mr. M.'Kenzie and bis Venlict. Jkfore I conclude I have a few Words to offei', which I think are required by a Sense of Justice to others. The Public know the Individuals who were associated with me in the Attack ii|)on the Advocate Press. Most of them were young Men. That they are not lawless Characters is best proved by appealing to the whole Tenor of their Lives, and by putting the single Question, Upon whose Property did they ever trespass before ? Not satisfied with abusing us first, then suing us, and then, after obtaining .Satisfaction, returning to the Subject and abusing us again, Mr. APKenzie has thought it would be a good Stroke of Policy to insinuate, at least, that the {iovernnient, the Magistrates, the Crown Officers, and others, were all con- cerned in the Outrage ; and if be can make any one believe it, tuc Truth or Falsehood of the Statement is not likely, as every one knows, to give him inuch Concern. He has accordingly thrown out certain Hints for Public Suspicion to work upon ; and then affects to regret tliat his Counsel would not allow him upon the Trial to attempt to prove the Truth of his Assertions, telling liim very gravely that it would hurt his Cause. They knew it would, and so ilid he, for not a Question could have been asked witli that View, that would not have proved at once, upon Oath, the Injustice and Malice of bis own M Insinuations. I ■'*AA ■li fc «ll»» « I { »« ) Insiiiiiationt. Ilf ilioii^ilit it lutttr, fliLTfl()rf, t'» conlinc Ins Caliiniii) to liis I'apiT, ami sa\ iwHliiiij; about tiic I'root's. On tliis llc.ul I till it riglit to state, truly and plainly, with respect to Mr. Allan, who is a Maunstrati', anil Mr. IKwanI, who is not, and, I hcliovc, never has been, that 1 neither saw them nor knew they were in View. The Transaction took plaee at that Time, in a Summer .Itternooii, that People arc usually to i)e seen standinj; or walkinj; near their Doors. The House oC Mr. Allan is innnediately opposite to the Advoeate Olliee; the House of Mr. lleward near, and in Nif^lit, though more distant; and the Attorney General's Olliee stands betsveen them. Had Mr. Allan or Mr. Heward been in tiie Street before we entered the House, I am convinecti 1 should have seen them. Hut as they were not, and as the whole Transaction occupied but a Moment oC Time, being scarcely sooner bcf^un than end d, had they known wliat was going on, they coidd not possibly have preveiileil it ; and as to their being I'arties to it, and approving it, because they happened to be in Sight, it nnght be said as tridy that the Crowd tiiat stood on the IJank last Spring, and saw the Squaw " But I feel that, more thai. lie Government, and those Individuals of the (iovernment whom Mr. M'Kenzie had been employed in traducing, had Reason to complain of our Want of Consideration, in subjecting them to Insinuations which they could not condescend to repel. I have allowed Persons, thoughtlessly, to join me, whose Connection with tlie Friends and Officers of the Government would afford a plausible Ground for a malicious Calumny, not considering that their having been provoked, beyond others, by the brutal Slander on their Relations and Employers, though it prompted them most strongly to the Act, made them the last Persons that sliould have been suffered to join in it. As the best Amendinent I can make for the lateness of my Reflection, I have taken iijjon myself the Task, without the Knowledge, and consequently without the Approbation, of the Government, whose Servant I am. to give to the Public this true Account of a Alatlcr, upon the Fame of which Mr. M'Kenzie evidently hopes to live after the Injury has been recompensed. As to the Morality or Immorality of the Act, I am easy on t'"tt Head ; for I feel that I deserve more the Respect of Society, anil have more Reason to respect, myself, as an Actor in the .\ttack upon the Press of *he Colonial Advocate, than those Persons who, regardless of the Peace and Happiness of (i Families, ( ) to give Kaniilios, liiuo loiitiihiited Fiiiitlt Im ilic ri(i|iiinatu)ii ol Scaiulal and Kalschooil l)v snhscrihiiij; to tlif I'ajior wlili'li lia^* |nt)ci'i'iltil Cioni it. Till' Ori;,'iiial o( llir Alliilavit which f'ulliws may W >oiii hy any lVr»oii la my I'ossessioii. Vorl(, Janimrv IHW. (Sigiio.l) Samuel P. jAUVts. Samiu'l P. Jarvis, Charli's Richardson, Jolm I-yon^and James Kinj;, r,srobation, are wholly and utterly untrue. ,Samli,i, p. .Iauvis. Sworn before inr, tills 2tl January IH'^H (Signed) Alex. M^Duimell. , J. P. j I IIknuv Siikuwoou, «; ... n J.'a.mks Kino, ® M C. K. Hewaui). ^Pf.ti;u M'DouciALi. .loiiN LVONS. CHAKLES lllCHAItUSON. ,?ohn Lyons sworn to the aforesaid Aftidavit before me, the lOtli Day of January l.S'iS. (Signed) Charles Cunmiii« ) i IiU'lo^uif, No. 7» To tin- Public. A Contradiction ot tlu' l.il)il, iiiulcr the Signature of " A Relative," piibli.slied in the Canadian Freeman of the 'J8tli I'ehrnary IS'JH ; together wifli a few lleniarks, tracing the Origin of the iiiifri'.ndlv Feeling wliich ultimately led to the unhappy Atliiir to »iuch that I.ibel re((;rs. Hy Samuel I'. .larvis. Hth April IS'v'S. To the I'liblic. — When I perused the Article under the Signature ol' " A Relative," wliii ' ajipeaied in the Ciinadian Freeman of tiic'.'Slli I'Vhruary last, my first ImpuKu was to pulilish a faithful Detail of esei) Particular relating to the unhappy Ailair to which that most atrocious ami unmanly Libel refers ; and also to ende; vour to make appear to the World how and in what Manner the nnfrienilly and vindictive Feeling origiiiafeil, which has so long existed, and which, on every possible Occasion, has been manifested towanls me by Mr. Ridout's Family. Hut having disclosed my Intention to One or Two Persons, for whom I have ever t'litertained the highest Respect, and on whose JiKlgi"cnt and 'I'.iieiits I fiave always placed the greatest Reliance, and they unanimously deciiling that the unmanly and unwarrantable Attack upon me by " A Relative" was in itself so gross, so fiend-like, and so improbable, that it iieeded no ( 'ontra- iliction, or, at all Fveiits, nothing more than that which must and would be afforded l)y the o ily 'I'wo (leiitlemen who could with Fairiic i and just Propriety contradii't it, 1 hesitateil not, in deference to their Ojiinion, to ab;ui(li>;i my first and original Intention, and to adopt another Course. Accordingly I requested Two Cientlemen of Respectability lo call upon Mr. Small and Mr. Roulton, to confirm or to deny the Statement of " A Re- lative." The Resiiit of this Interview has already been laid before the Com- munity ; and 1 indulged in the Hope that I should have been spared the Pain of again recurring to a Transaction which I have declared, on a former Occasion, to be the most distressing of my Life. Hut it was destincil to be otherwise. In the Freeman of tiie 3d instant, under the Editorial Head, I am again attacked in the most brutal and unfeeling Manner, and I have Reason to believe, with the .Sanction and Approbation of some Members of Mr. Ridout's F'amily. Motives and Fi'clings are therein ascribed to me, which I never did and never can possess ; and Conduct so disgraceful is attributed to ine, as almost to exceed the Hounds of Possibility. Upon these malignant Assertions, however, the Public is called upon to pass Judgment — to condemn or to accpiit me ; and the Appeal is made, because I have not condescended pub- licly to contradict every false, improbable, ;ind absurd Statement set forth in the first Paper signed " A Relative." When I yielded to the Opinicm of my Friends, I must candidly acknowledge that I was not convinced that I was then mistaken in the Course I was about to adopt ; but it was because I felt that they, having no immediate personal Feeling or Hias, either on the one Side or on the other, were far better qualified to decide on a Qnestion of so much Delicacy and Pro; riety tiian myself, who had been, and still was, the Object agamst whom w s waged the most deadly and uncompromising Hostility. I am quite certain that the Advice which I received from my Friends w ould have been, in any ordinary Case, or had the Persons against whom I was opposed possessed such Tempers and Dispositions, or any of those open and manly Feelings, as are commonly to be met with in Society, the most fair and proper that could uc devised. Hut the Sequel has provecl it to be otherwise ; ibr, through the Medium of a shameless Press, 1 am visited with Persecution, such as I do not suppose has disgraced any civilized Society before. This unexampled Conduct has driven ni'^ to follow my own Judgment in giving to the Public, in the lt)lio>ving Pages, true and impartial Relation of Facts, which have been so wickedly ami so cuelly distorted and perverted. I cannot be certain, at this Distance of Time, that there may not be some trifling Errors, in Dates or otherwise, wliicli might be made the Ground of Cavil ; but I pledge myself that all the material Ciieumstances are as I state tliem. Maviiig a ( 49 ) HiiviiiK siibniitiiil to the ^mintiil Task of ^inuxti tins DvUil, 1 tiiHt I have tl«iiu' ftioiigh t>) fiiahii' my I'rii'iiils .jiul oihcotn tlniii a I'onvrt ()|iini(Mi , and I can siaiti'ly iiiiaf,niif tliat any ihinj^ whiih ciui l)i' said will iniiini- me to c-liangt my Ik'ltrniination ol (oilK'nrin^ any tintliff Notice of tlii>, Niibicct, imiesn by tiiosc I'roccedinj,"* which I may tliink necessary tor pimishin^' the l'(d)li.slier ot the malicious Cuhniiny. V.irk. ftih ,\}iril ln'.'H. (S",'neil) Samiki. I*. Jauvis. \\\\ the Siihscrdicrs, hiiviii;,' noficci' o Article under the Si|Lrnatnre of "A Relative," |)id)lislied in the ('ana !jy for her Behaviour, or tliat vou meet me with your Friend, at Seven o'Clock on Saturday Morning next', at the Five Mile Meadow, opposite Brown's I'oint. ■' I am. Sir, (iooriru Uidoiit, Esq. " Vour obedient Servant, " &c. &c. (kc." (Signed) " Sa.miel P. .Fakvis." "Tl Sir, " 'Jili .Niiveiiilicr Hid. I'd in the latter Tart of vour Letter, " I shall accept of the Terms conta _ " if it be possible to reach the appointed Place witiiin the Period iunited.'* " Your humble Servant, •• .s.i..jams.K..q.' (Signed) " Glouge Riuolt." This Meeting did not take place : it was prevented by Circumstances not under the Controul of Mr, George Kidout. On the Evening of my RetiMii to York I received the following Xote: — '\ 'j""' " I'.'lh NovtMiilier IHKi. " The Accidents which have already occurred to present tiie -Meeting agreed upon, may, I trust, be avoided, in any new Appointment you may " think proper to make. '^ It is unnecessary for me to state, that I consider myself bound by the " (ormer Fngagement to give you the Satisfaction requircl, at any Time or •■ Place you may appoint. '• Siuiiuel P. Jarvis, E>q. " ^c. ! " l.'itli NovcnilHT 18Mi. " Having traced a Kepcrt to Mrs. Kidout, that her Son Thomas had been •' under the Necessity of defraying the Kxpences of Miss Lli;ja Jarvis's School- " ing &c. since her Arrival at Quebec, to the Amount of .fU)t) Currency, " and that he could devise no ileans to induce me to remunerate him for that " Act of Generosity, I am induced to call upon you, Sir, in this Manner, for " an explicit Contradiction o.' that jieport. " I am well convinced that your Son Thomas could never have stated any " tinngto sourself; or Mrs. Kidout, fiom which such a Conclusion could be « drawn ; and as you must he well aware of the Injury done to my Character ' and l-eelings from the Circulation of such a Kepmt, you cannot hesitate " complying with the above Request. " I am, .Sir, " Tlidnias Ridoiit, Esq. " &c. )tc. &e. ' " Your obedient Servant, (Signed) " Sa.mui;i. P. Jakvis." '^""i " York, !5tli November 181(1. «. "(• I '*^'\'^ ^^ •^'°"'' ^^"*^'" °^''"^ '^''^'^' ^ •'*-'g ^° =>s'*'"'^ yo" t'l' t no Assertion ot the Import therein mentioned was ever made by Mrs. Kidout (as she " declares to me) to any Person H-hoin;,oe\ er. "The I ( .>2 ) I " The Accounts wliicli my Son Thomas has rendered to yon will undoubtedly " show his Expenditure and your Hemittances, and prove an honourable " Testimony of your Regularity in acipiitting your Engagements. " I very much regret that your Eeelings should have been hurt at any " Report," for I am well convinced tiiat your Conduct has been honourable, " and not deserving of the smallest Reproach. " I am, Sir, " Yom- very Innnble Servant, '• Sanuicl P. Jiirvis, Esq." (Signed) " ThOMAS RiDOUT." The next Day 1 received tlic following :— " Dear Sir ""''' ^fveiuber 1816. " Being well convinced that the Expressions said to have been uttered by my " Mother arc without Foundation, I nnist request you will have the goodness " to inform me whether your Information on the Subject, and to the Extent '« communicated to my Father, has been exclusively from Mr. C. Shaw, or " whether such Report has been confirmed by any other Person. " From tlie Assurances of my Mother, 1 am bound to believe, that although " siie may have made hasty and unguarded Remarks on the Business between " yourself and my Brother, yet that those Remarks never amoimted to the " Imjjort contained in your Letter ; and therefore request you will give me " such Information as may tend to a complete Explanation of this Matter. " I remain, dear Sir, " Your very obedient Servant, " 'Jo Siiniuel 1'. .larvis, Ksq. &c." (Signed) " CiEOllGK RiDOUT." Rkpi.y. " Dear Sir " '6''' November 181C. " In Answer to yours of the l6th, I have to reply, that in Hddition to " ]\Ir. Charles Shaw, whom I have already noticed as propagating the Report " made to my Prejudice by Mrs. Ridout, which he said she repeated to him, I " beg leave further to notice Mr. Charles Short, who travelled with Mrs. Ridout " from Montreal to Kingston. " This Gentleman says, as I have been credibly informed, that Mrs. Ridout «' observed to him, as well as to others, ' There is Sam Jarvis ; he took doxvii " his Sister, and /ejl her in Quebec last Year, and she has been supported by mij " Son Thomas ever since ;' with other Expressions much to my Prejuilice. " At Kingston, I am informed, the Report was generally repeated ; and it «• was in Circulation here for some Time belbre it came to my Knowledge. "I remain, dear Sir, " Your obedient Servant, " George Ruioiit.Kjq. SicRcc^o." (Signed) " Samukl P. Jarvis." Thus terminated for the Moment this unfortunate and unpleasant Dispute, in which, certainly, I was alone the Pcra;,n injured, and confessedly without the slightest Cause ; but it had nevertheless engendered Feelings towards me which it seems could not be overcome. Some Time in the Month of June 1817, Mr. George Ridout brought an Action against my Father, Mr. Secretary Jarvis, to recover the Amount of an unliquidated Account, placed in his Hands for Collection by a Man of the Name of Robison, by Trade a Gardener. I had heard nothing of this Debt until some Tiitie after the Action had been commenced, and a Writ of Sumtnons had been served on my Father ; and then I was informed of it by Mr. George Ridout, who stated to me that he was about to visit New York, and was desirous of closing as much of his Business as possible before he took his Departure. 1 promised to speak to my Father immediately, and inform Mr. Ridout of the Result. A few Hours afterwards an Opportunity presented itself, and I did so. He told me that this Man, Robison, had been in his Employment for a long Period ; that he had from Time to Time made him .Advances, as he thought, to nearly, if not quite, the full .\tnount of Wages due to him ; and that he hiid dismissed him for gross Misconduct. Several Several ( 5-3 ) Several Years hail elapsed (if my Recollection serves me right), after Robisoii had been dismissed from my Father's Service, before he broucht his Action His Claim was not large; and I recommended my Father, who had not kept an accurate Account ot the Advances made to him, to submit to the Claim how- ever unjust, rather than hazard a Suit, which, in my Opinion, would inevitably be (iecidod against limi. in consequence of his own Neglect. This Advice he acted upon; and I waited on Mr. George Ridout, to say that I would be responsible (or the Debt, and see that it was paid by a certain Day which I named (it being the probable "- T,e that the Warrants (or the Payment of the U(hce Accounts would issue),;., . that all further Proceedings should be stayed lo this Mr. Rulout assented ; but added, that as he was about to leave the Province (or a considerable Time, he thought it would be more regular, and certainly it would be more satisfactory to him, if the usual Course was pursued, which was for Mr. Jarvis (the Defendant) to sign a Confession of j'id-men[ for the Amount I made no Objection to this; but on the contrary procured the Execution of the Paper, and witnessed it myself. When I placed it in Mr. Ridout's Hands, it was with a full and clear Under- standing that it was not to be acted upon, but that all Proceedings in the Suit should, in consetpience of the Undertaking I had made, from that Moment cease. Mr. G. Ridout soon after left this Place for New York. Before his Return, his Brother John, then a Student at Law, and in charce of lus Brother's Busmess, called upon me to say, that he had been goinc on with the Suit instituted against Mr. Secretary Jarvis by his Brother before he left Home, had prepared all the Papers for entering up Judgment, and now waited for an Affidavit to prove the Execution of the Cognovit, in order that a Writ against the Chattels of Mr. Jarvis might be placed in the Sherifl-s Hands. Astonished at this Communication, and still more so at finding that the Proceedings were conducted in the same Manner as if no Confession had been given, I inquired of him whether his Brother had not made him acquainted with the Arrangement he liad entered into respecting this Suit. He replied in the Affirmative. I then demanded upon what Principle his Conduct (in proceeding in the Suit, and incurring to the adverse Party so much additional bxpence.) could be justified. He answered me by saying, " that he considered • It his Duty, during his Brother's Absence, to increase the Costs in every '• Suit left to his Charge as much as possible." This Expression surprised me ; and 1 protested against such Conduct as improper and dishonourable, and declared my firm Determination neither to pay myself nor suf!er my Father to pay any thing more than the Amount of Debt recognized on the Face of the Instrument which had been executed, and such Costs as had accrued up to the Period of its being given. *^ He, on the other Hand, declared that every Farthing of the additional Ex- pence incurred should be paid by myself or Father ; and he grew so warm and violent on the Subject, that to put an End to the Conversation I desired him to leave the Office. There was no Person present but a young Man by the Name of Marshall, who neither spoke nor moved from the Desk at which he was writing. I did not lay my Hands upon him, neither did any one else, nor was Violence of any kind used towards him, unless the Circumstance of my requesting him in a him aiid peremptory Manner to leave the Office can be called Violence. Wfien he obeyed my Request, he apparently was under the Influence of ex- cessive Ilage, and made use of much threatening Language, and in fact he then declared his Intention to be revenged upon me. The next Day or the Day after (I am not clear which) Mr. George Ridout returned Home. I suppose his Brother communicated to him what he had doiK In the Suit and the Conversation that had passed between us, as he called upon me almost immediately after his Return, and apparently for the Purpose of conversing on the subject. He expressed Regret at the Steps his Brother had taken during his Absence, and said he could not for a Moment suppose that the addi- tional Expence which had thus been incurred iii the Suit would be defrayed O by -1 I hy my FatliiT 51. } , l)nt III- adiK'd, lliin \w ihou^lu my IJoliavioiir hi liis l$iotlier, it'riii"- liiin out of tlu' Ollici', was (itiitc iiiicallucl for and unnecessary id that he ielt very iniieh hurt at it. I explained, by as snring liim that his Brother's Lanj^uage, Manner, and indeed his whole Deportment on the Occasion, were so strange and iniacconntable and unexi)ected, that I could not avoid terminating the Interview, and that I saw no otiier or better Way than i)y retpieMing iiim to withdraw. Mr. (ieorge Ridoiit soon after lei'l me, but evidently labouring under the same Feelings of Resentment or Displeasure witli which he called upon me. A Statement of the Debt, &c. was sent to me a siiort Time after, anil I settled it, no more being required of me than tiie 13ebt and Costs uj) to the Time of the Cognovit being given. A Day or two after this, while walking up King Street, I saw .John Ridout comin'r towards me from an opposite Direction. As he approached he walked hastily. I thought he had something to conuuunicate. Indeed he came so near to me that I was almost in the Act of speaking to him, when he suddenly turned away, and walked in anolhei Direction. It was, I tiiink, on the same Day that I met him again in the same Street; be was on the Right Hand Side and I was on the Left. M'hen nearly abreast of ( tch other, lie suddenly turiiec! about, and came rapidly towards me. His Conduct on the former Occasion had excited in my Mind a Suspicion of what afterwards proved to be the Case; and not ' eling disposed to manifest a Disinclination to come to an Explanation with him, I advanced a few Steps towards him. AVhen within a iew Yards of each other, he again wheeled about, and walked in an opposite Direction. On the l)ay following I was walking with Mr. George Markland. it was Council Day, ami there might have been, perhaps, Fifty or Sixty Persons lounging in the Street about Mr. Small's House, in which the Council was then held. Mr. Markland and myself had walked up to the Crowd, and were returning, when I observed Mr. .lohn Ridout and a J\Ir. Stewart (another Student in Mr. George Ridout's Office) turn the Corner of the Street near us. Mr. John Ridout had in his Hand a large Stick or Bludgeon. As soon as he perceived nie he left Mr. Stewart ami walked towards Mr. Markland and myself. When he had aiiproaciied within a few I'aces of us, he stopped, and addressed himself to me as follows : — " / hate cumc for the Pitrposc of paj/i/i^- " youjhrthc Insult I mx-hvdiniyuur Office hist IVeek, bij giving you a good sound " Drul/I'ing," I immediately separated from Mr. Markland, and said, '• You " are armed, and I am not ; but as ) on have signified your Purpose, the •' sooner you begin your Work the better." On this he rushed upon nie, and stiuck me several Blows. The first 1 received from him was on the Head, which nearly stunned me. The second shattered the Bones of my Right Hand, and rendered it perfectly useless ; nor did I recover from the Eflects of this latter Blow for Six Months after. Fie was considerably taller and stouter than myself. I attempted to close with him ; but as I advanced, he retreated, striking at ine with increased Violence. At last I aiiproached within Jveach, aiiil I struck him with my Left Hand some- where upon the Face ; and before he had Time to recover, repeating the Blow, he fell to the Ground ; and laying bold of the Stick he held in his Hand, with some Difficulty I succeeded in taking it from him, and afterwards threw it over a Fence into an adjoining FieKl. Then advancing upon him, many Blows were interchanged, which resulted in his being brouglit to the Ground several Times. No Person had as yet interfered ; but just at this Time Captain Fitzgibbon, an.'. I think, Dr. Home, appeared in View, and immediately aj)proaclied the Spot where we were engageil. On discovering the Parties, Captain Fitzgibbon interposed, and said to nie, " Do not strike him again ; he has enough of ,'t;" and, taking Mr. .lolin Ridout's Arm, he conducted him to his Brother's Office ; on entering which (as he informeil nie) he said to Mr. George Ridout, that he luid found his Brotiier engaged in an Affiay with Mr. Jarvis — had inter})osed — brought him away, and rccommciuled his using his Influence to prevent a Repetitior. of ti.e Oceurreiice. ' I Mr. x^ an lOiii^ageiiKMit to Mr. .\rr. (icortif lliiit'iil (.IS I UM- told /cplu',!, ih.it nr «a> Miriv tliai lie ('up. tam I'itzgibljoii.) liail iiiti'iCcivd at all , thai it won!. I liavc l)oeii l)ittcr to^iau' allowed liis IJiother John to |)iiiiisli Jaivi.s sfverely for the Insult he had received from liini. The very Day this Oeciineiice todk place I was under accompany the Reverend Dr. I'eters to Lake Simcoe. 1 had hut just retiinu-d ilonje from the Afliay, when Mr. (;eor<,'e Kidont calleil upon me, and said, that he had hearo of wha't had taken jjiaec" between his 15ro;hcr and myself, and that if 1 took any further Notice of it I should certainly afterwards account to him. 1 answered Inm hy saying, that I should pursue that t:t«4w;t I thought most proper. The same J)ay J proceedcil with '''e ifevcK^nd Doctor IVlers, in a hired Conveyance, and arrived in the Kvenitig at the Itesidence of .Mi. Peter Itohin- son at Newmarket. On the following Day I accompanied Di-. I'eters to a Place called the Landing, on the Holland IJiver, where he embarked for Drummond's Island. That^ Day 1 returned to York, and aniveil about Sun-sit. When with'ii about Two Miles of the I'iaee 1 met Dr. I'owi'll on his Way from Town to !iis Resilience at SpringHeld, and he invited me to return with ;uid spend the Evening at his House. I declined the Invitation, and spent the Lvening at Home. On the ^"^^ extravagant i,,.j 1 ' Periaps could have been invented and uttered bv thp u,n^t 'hardened, unprincipled, and abandoned Wretch iit exiftlnce. aL as tlfe Statements w ( /;« ) Statements (if true) shoiilil drive me out of the Fiile of ail respectable, in deed of ail civiii/cd Society, I (eel it necessary, however paintid it is, and however humiliating it may appear in the Kyes of the I'ublio, to come openly forward, and in direct and specific Terms contradict what is allegeil against me by this malignant and anonymous Scoundrel. It suggests itself to my Mind, that to do this most properly, and at the same Time most effectually, it wf)uld be advisable to call upon the Two Seconds to confirm or deny the Account given by the " Relative ;" and it will atlbrd me peculiar Satisfiiction to have you (in Company with some other Gentleman) wait on Mr. IJonlton and Mr. Small tor that I'urpose. I am, My dear Sir, Yours very faithfully, Colonel Kitzgibbon, Ike. kc. &c. Samuel p. Jaiivis, My dear Sir, .iili March ih2», Messrs. Henry John IJonlton and James G. Small have met in Presence of Mr. William H. Jarvis and me, and the Result of our Conference has been the accompanying i'a])ers, numbered One and Two. No. 1. is a Contradiction of the false Statements made in the Paper published in the Canadian Preeman, signed " A Relative ;" and No. '^. is a detailed Statement of the Circumstances which attended the Duel. Considering the Nature of the Attack which has been made upon you, I did not hesitate to comply with your Request. Indeed, I think it due to the Comnnmity, that every Man should now exert himself to protect inilividual Character from the Attacks of unprincipled and wicked Men. I remain, dear Sir, Very truly yours, Samuel P. .larvis, Esq. kc. Ja.MES FiTZCIBBON. No. 1.— On the 5th of March instant (IS'.'S), Messrs. H, J. Boulton and James G. Small met, by Request, in the Presence of Messrs. James Pitzgibbon and William H. Jarvis, when the following Statement, intended to contradict an Article whicii appeared on the 28th ultimo in the Canadian Freeman, under the Signature of " A Relative," was produced and read to Mr. Small, and an Appeal was made to him to confirm its Correctness, when he declared that there was no material Part of it which he could contradict, and that the minor Parts, which he could not confirm, he admitted may be quite correct, but that he couki not then recall them to his Memory, viz. • That Mr. Samuel P. Jarvis was not in York from the Afternoon of the Day on which he w^as assaulted by Mr. John Ridout in the Street, until the Tenth of the Month of July. • That Mr. Uoulton was not at the Time of the Duel Twenty-eight Years of Age, he having attained, not Three Weeks before, the Age of 'Pwenty-seven Years. That Mr. Boulton was not at the Time of the Duel Acting Solicitor General, nor was he appointed to that Office until the Uth March J818, the Year following ; nor was he in any Manner connected with the Government. That Mr. Ridout, having understood that Mr. Jarvis intended calling upon him, desired Mr. Small to wait upon Mr. Jarvis, and inform him that he was ready to meet Mr. Jarvis at any Time and Place he would name ; and that Mr. Boulton afterwards waited upon Mr. Ridout at Mr. Small's for the same Purpose, and the Meeting, &c. were arranged. That that Part of the said Article that declares that Mr. John Ridout fired by mistaking the Second Word for the Third (owing to a stronger Emphasis being placed on the Second Word by Mr. Henry John Boulton) is wholly fidse and untrue, inasmuch as the Signal was given by Mr. Small, and not by Henry John Boulton. That the Words stated and declared to have been used by Mr. Jarvis to Mr. John Ridout, when Mr. Ridout fi-ed, viz, " Go back to your Ground, " damn you," arc utterly false and untrue. * This Mr. Small cannot sav of his own Knowledge. That ( VJ ) That Mr. Jumt's Smull never inftr».T..il wi.i. « \" . . mtMahetwciM. tlu' Parties -.rtor ml/' ..•^''^.'^ '" "" a'n'cable Settlu- Ndtl.cr .lid Mr 5 ,n lib," o . r" ^ "''V'^"* .*"' '''^' ^•^'"""'■ ..n,uie,s<-c-.l in the Deei.sion of M Sm . ,', '" /'' ' ^"""■="y- Mr. Ui.l....t fnll> Mr. .larvis bei,.^ allowed his Vire • '*"""""' "" '''^' •'"^"•^'''^ of " Jt;:';^;;;!/' fh^n r^iS ' ' ^'^''^^'^ "-^''^ "^^ «'■ '•- '-P~. •' There. /all. hut wa. supported fo? m e ' Vu ^ol l!'"'""'' "^ V'"' "'''"'" '"'' ""' /lands with all Varties nrese iidl '•.: u "T"""" ''"* ^^■'"""'' ^'>«"I< •= .'arvis had „„t shot h „ 1 /i./l , I '^^^^^^^^^^ ' '*■■ ^"^.y^' '""' '''■^•'^'•-•'» " K" tlKitthenwasanythinl' ifu; if ' ; ; ^1 ■''?;' ' '•""' "'''' *"^""^"ed of all Parties. " ' ' <-M""SNed Juinselt satisHed with the Conduct j^.^^^ I to tne contiaiy whde the Parties remained with (Certified) ./a.mks I-VrzciiBnoM. Wm. n. Jakvis. .".i!!m^;r\^;rc.^!!;;;;^' j:;s;;:;«£ ^^ .f ^i'^-'-n of ti. ieadi„, or .ost an.l Mr. .John Kidout. v^.s " ,b iL „.V T'V u'' "^''"'"'^ ^'- "'^'^i^ -.1 Mr. Jan,es G. S.ld^tudtS' o "n ^ P-tni!: ^^''' *'"'"' '^-''- orM;.ti^ls; l^^}:l;l;::^ t,' '''•'""^^ ^f^'^ ^^ '•- "-n-t '""I understood tha 7h H J Zl ., i; ?n"' • 'Y "",' ^^^'■- •'"'"' '^'''""^ i">asi"ing Mr. ]}. was the lic^LlTTj f" "'•>""'>•'' "^ ''""' ^"'1 that, «' say that Mr. Jol.n Jiidou w r d' f T^^^ vT",^^^'"- '^'"'''' ''^' ''''^> ^•^"^■' Mr. .farvis thought ,'ro;;ir ^ '" '""''' ^^''•- •^^'•^■'■'' '^ ^^^'^'''"fe' ^'.enever n<',s::and"i!si\s"st5'^^^^^^ ^■"^" f'."'^ ^'•- ^-"'^ Morning, at Day^iight, at 1^%'! li^^.t.'^^^S^e.r' '"" '" '""°^^"'« nS:J:;;;.s.^^[|':j;r,^:::i:,^';,^;i- -- neany^^ile ana Lightn!^,g an "o^t,i"I V^'j^r^^l^^T^ "' ^.'^''"'-'- light, and was absent for some Time Mr BouTton M < i^'", l'?'"'*' ^^''>'- reniained in the Barn conversinT' in .' , „"' ?/*■ '^"'^'Und Mr. Kidout, appeared. IVeparat.ol/l^JSlb f thi CoSf'' ''"""'• ^""^" ^''^"''g"^ l)iir;;i" 1';^ i;;ighroi;Tt ' '■;' ■' --f^^-wards decided that the a lieason, that I.e coS Ld m" j'"ffs"^^ ^ ') I'^T '"t "^'°"-* - a short Distance they would ife mir^i^T^i.^f^" """^^'^' '"'" ^'^^ ''^ '>ei..g behind Mr. Kidout ; iuJ^^i^r'^ilX-^l^t^^j-S;- ^^^ would I ( 6u ) would attract tlie Kyt>, uiid aid the Parties in taking' Aim, and consequent I v would lie more likely to cause the Fire to take Kffect, theOrouinl was clianjjed to un entire open Space. It wos agreed that the Signal should be given by Mr. Sm ill, which was to be One, Two, Three, Fin: At the Word Two, Mr. Kidout rind, and moved liom his (Jround. Mr. Small called to him to resume his Ground, and put a loaded Pistol into his Hand. On ii Consultation between Mr. Houlton, Mr. Small, and Mr. Hidout, it was considered by all Three that Mr. Jarvis shonld have his Fire. The loaded Pistol was accordnigly handed back by Mr. Ridout to Mr. Small, and the discharged one replaced in his Hands. Mr. Small then gave the Word as originally agreed upon. One, Two, Three, Fire; and Mr. Jarvis, at the Word Fin; did fire, without Deliberation, and without raising his Arm until the Word Fire. Mr. Ridout partly wheeled round, but did not full. All I'arties ran up to him. Mr. Jarvis threw his I'istol on the Ground, and said, " My God, what " have I done !" Mr.|Ridout shook Hands with all Parties, and freely forgave Mr. Jarvis, anil said, " If Jarvis had not lot him, he might have shot Jarvis." There was a full Expression of Forgiveness on the one Side, and Sorrow and Regret on the other. After this Conversation Mr. Ridout fainted, and the Parties, supposing he was dead, left the Ground. No Rain fell after the Ground was measured, during the Stay of the Parties in the Field ; and none of the Expressions attributed to Mr. Jarvis, viz, " Go " back to your Ground, damn you," and when firing, "There, damn you," were ever uttered by him, or any thing like them. Mr. Jarvis, when he per- ceived the Nature of the Wound, and what was likely to result from it, appeared much overcome, and used many Expressions of Sorrow. Neither did Mr. Ridout ever say that there was foul Play ; on the contrary, Mr Small asked Mr. Ridout if he was satisfied with his Conduct, and he said perfectly, that it was all fair. Neither did Mr. Boulton ever stir the Body of Mr. Ridout with his Foot, all Parties being too deeply affected by the melancholy Sight, to indulge in such Brutality. Flvery thing tliat took place on the Ground was with the full Concurrence of Mr. Small and Mr. Boulton, neither of them insisting on one Line of Coiiduct instead of another. What is above stated is correct from my Initials. What is previously stated I was not present at. H. J. B. (Certified) Jambs I-'itzgibbon. Wm. B. Jarvis. My dear Sir, York, 2d March 1828. If my Recollection serves me right, you were present at an Affray I had with the late Mr. John Ridout, in 1817. in the main Street, near to where Dr. Widmer's House now stands. Will you have the Goodness to inform me, in Writing, what you know and saw of that Affair ? The Article under the Signature of " A Relative," published in the " Freeman " of the 29th Ultimo, will, I am sure, be a sufficient Apology for putting you to this Trouble. I am yours very truly, Colonel Fitzgibbon. SaM. P. JarviS. Reply. My dear Sir, York, 2d March 1828. In answer to your Note of this Morning, relative to the Affair you mentioned, I beg leave to acquaint you, that on the Day on which that Aftray took place I was passing down the Street which leads from the Surveyor General's House towards Dr. XVidmer's, where I saw a Crowd assembled round some IndividfN who appeared to be in close Conflict with each other. Unwilling to witness Scenes of this Description, I was passing on, but on observing the Crowd opening towards me, I raised my Eyes, and saw the late Mr. John Ridout and you grappled together in close Conflict. Mortified that Two young Gentleme'^, for whom I had a high Respect, should so expose themselves in a Crowd, i instantly ran to separate you, and seeing Mr. Robert Kerr present, I called upon him ( 61 ) hini to assist iiu-. when we witli Dillii iiltv p.irteil voii. ami I. with miieh Kvcrtioii foinpelli'il Mr. Iliiioiit to aaomiiaiiy nie to liis jJiother'sOHice. to whom Iirave liiin in charge. I remain, dear .Sir, \'erv truly yoiir.s, S.m.P.J.m..E.n. ' Ja.MKS FlTZUUUOV. N. H. The Circuinstanre or rather Words which took place in .M>. (jeorirc Ilidoiit's OHice, and which I did not state tliis .Moiiniif,' in the foiegoini' Note I now snlyoin, since you express a Wish Cur me to do so. ' ^\'hen I ct.iisider the Nature of the Attack whicli has hccn made uiwn you I cannot withhold t'mm you any Fact within my Knowiitige, which you may think necessary to empiov in your Defence. They were as toilows : On arriving at the Office, I found Mr. George Ridout in it, when I spoke to him to the following Krt'ect; viz. " That I had just found his Urother in an AH'ray witli " Mr. .Sam. Jarvis in the puhlic Streets, and that I hail hy Force separated them, " and brought his Mrother to him." '1 o wiiich Mr. Ridout answered, saying' " Upon fiijj lion/. Sir, lam rcri/ .sorri/ j/oii did." This surprised me a good deal, anil 1 rejilied by formally bidding him a gooil Morning. J. F. G. My dear .Sir, York, i ith M»rch 1828. In an Article published in the " Canadian Freeman" of the ^.'Htli L'lt., under the Signature of " A Relative," it is made to appear rather doiduful whether I was or was not the first Aggressor in an Atliay which I had early in the Month of July 1817 with the late Mr.Joh;i Ridout, at which you were jiresent. I shall feel niicli obliged by your stating, in Writing, what you recollect of that Transaction. JJelieve me. „, .. Yours very liiithfully, The Hon. George Marklanil, &c. 8ic. &c. Sam. P. Jauvis My dear Sir, York, I3 March 1828. In reply to yours I beg leave to state, that at this Distance of Time 1 cannot recall to mind the express Words which were used at the Meeting between yourself and the late .John Ridout. The following Circumstances are, however, fresh in my Memory. We were walking arm-and-arm in King Street, near Dr. Widmer's, where we saw .John Ridout coming towards us ; when sufficiently near, he stepped up to you, using some threatening Language, and struck at you with a large .Stick, which Blow, I think, was warded off; you then immediately closed with him' and a Scuffle ensued, which ended in a Separation by the Persons around. The Attack was wholly unprovoked at the Time, though apparently pre- meditated by the unfortunate Deceased, whose Assault took us both by Surprise, at an unguarded Moment, when we were engaged in Conversation and unprepared for such Violence. ' I am your obedient Servant, Samuel P. Jarvi.,, Esq. q^^^ H. Makkland. My dear Sir, York, I3 March 1828. Among the numerous Falsehoods and Mis-statements contained in an Article signed " A Relative," published in the Canadian Freeman of the 28th Ultimo, I notice the following: " On Thursday, the 10th of July, Samuel P. .Jarvis " went up Yonge Street, on Pretence of accompanying his Grandfather, " Dr. Peters, to Lake Simcoe ; but he only went as far as Dye's Tavern, " I'i Miles from Town, and rem.iincd there until Friday Afternoon, when he " came in to a Party at Chief Justice Powell's." You may, perhaps, recollect that I arrived at your House in Newmarket, in Company with the Rev. Dr. Peters, on tho Fvening of the !,)th July 1817; that I remained at your House that Night, and on tiie following Morning accompanied Dr. Peters to the Holland Landing, where he embarked in a Q Canoe 1 r«n.H.. for Drummorul . Mun.l ; a.ul uIho that you accompanu.cl „,e a I'art of llie Way on my Ki'turn to York. n you can liiiiiK' ll'^u^ ( lircumsfiinccs to your Mind, you will oblice mo bv douiK so, and con.mun.cating then, in Writing at your earliest Convenk.rco. ^ 1 am, my dear Sir, 'Ph. Hou. P,u, Robin.o„. a... fcc. *c. ^'°"" '"y '"i^'f "^., , Sam. 1'. jAnvii. • M I c- Uei-ly. In r^l T *■• , ... Vork,H,h March 1828. ..reply to your Letter of Yesterday, reouesting to know whether I recoU nev. Ui. Ic ers, on tt.e Kvenmg ot the Ijth of July 1,S17, and of inv hiviuLr lown, I bog t^ say. that I remembe.' perlect y the Ciicinnsfance of vonr com.ng to my House about the I'erio.l you .ne.ftion, in C , , y\ |.^ ' Kev. i)r. Peters; and also n.y riding with y<.u, on y n.r Uetii o Yo k h^ following Day, as far as Davis's i.. Yonge Street (Koiu- ml,) ' '^ I remain, my dear Sir, Q u , ■ „ Yours very truly, Inclosuie, No, 8. Sir T ....?. I I I II ,. Downing Street, I 111, May 1819. 1 HAVt had the Honour oi receiving your Dispatch of Gth January trans m.tting Copies of Letters addressed to you by the Earl ,,f Seikik and th. Attorney (General of the Province, relative to tL Trial; widch K ? cL ly taken place ii. .,e Colony between the Earl of Selkirk and the North West Com|,a..y. 1 have not failed to lay these Papers before His Royal Higl ness were ,n"7 f'^''"' ' "*" ' ^'?"''* ""^ '^" ^^'"''^ ^° *'"^ Attornc/oen rT f" were to forbear expressing the Satisfaction which I have derived from his mi;!J w Lh ^ ■'' i"!""?' ''"''''T y"":', *° ""'"'■'^ ''"" ^'"'tt'"^ Temper and Judg- d S,r P "" " ■ '"-' l"'' ^""^."'^'^d himself during the whole of hese long and difficult Proceedings has received His Royal Higllness's entire Approbatbn I have the Honour to be. Sir, „ , ■, Your most obedient humble Servant, Major General Sir Peregrine Maitland. (Signed) BathursT. I P. 66. . P.84--101. No. III. ^^^c * " Dispatch from Major General Sir PER-ORmE Maitland to Mr. Secretary Huskisson ; dated York, Upper Canada, 6th July 1828 — Nmeteen Inclosures. / ^"*o. ^°" '^' Judicial Affairs. „ ' _ tipp r Canada, York, 6tli July 1828. Referring to my Dispatch of the 6th Ultimo, a Duplicate of which i, twt yXT'S' 'T "'^"i ^-'-t y°- particulaVltiln^'o' •: inln °^, t'>e I^x'^cutive Council of this Province, and to tiie Documents appended thereto, and amongst those most especially documents 1st, Ihe Address delivered by Mr. Justice Willis to the Public while CouTofiin^'^'n"""' "•'"'^'' '" ^'"■^P'-ovince, announcing that there wis no Court of K.ng s Rench existing m the Colony; and that the Chief Justice and various other Civil Officers had forfeited their Offices. ^d, Ihe Opinion of the Law Officers of the Crown, and of the other Puisne Judge, upon the legal Questions involved in these Proceedings ^^ 3d, The -^pp*^' ( 6a ) .ill, The State established b:y all tl e jXs Tho I.I n ^ '. . " '■■'"''"'" •*""^'i""^''« .'.ul of much Kxm.it.nct^. 11 c„^ 1 ., ,'^^ '^ nn. a.non^r who,,, wc-re so„u. referrcJ to. -^ '^ ""^"'- '™'" '' 't'ln.sal ol the Docuimiits pporteJ, may advance. The Ht Hon. \V. H. Huakisson, M. P &c. &c. Ike. I have, &c. (Signed) P. Maitlavu. Inclosure, No, 1. order of Ue.rence laid he., t. -ncU^h^e .«.. with .o.ments onf SrS tf Mi^-HSSoiyt^^'^^^f ^° i^^^^ "'"- ^wo Letters. Colonies, and the Xr to Mr sL . ^,?J^^'>' « Secretary of State for the ment. Major HL^observedtl "em fn^?' '^" FT?''^ ^'"\ '^' ^^°'°"'^' depart- by no Coinmunlca ion Torn ilr Wifl s""dthpr '.^^f '' '^7^''. ^T'^'^P'^"'^'^ Governor or to Major Hilliermf™' ^'**'f^acldressed to the Lieutenant to the latter, on Zir^erild^^^^^ might be. officially transmhte^ thty w e rXSt Mr^Tlp' ''r ^''^^ unread, with the Letter No 3 returned to Mr. Willis, of course wh^h rs/t' :e:;±t^ t^z'^t ''f-'' ^'^•v^'^ ^^^^^^ ^^ *- these Letters: but LreTv^Lpl ^"^^'f^'^" ^'"'tever of the Contents of Consequence and thTth7„;;K' '''* they relate to a Matter of i„uch Governor ' ^' ""''''' ^''^^ ^''^^''^ '^'^ P^^^^^d by the Lieutenant They No. I. No. 2, No. 3. No. 5. No. C. No9. 7, 8, 9, 10. ( »Jt ) T\uy were read acconlingly, u.ul wore (bund to coiucy to Mr. IIiie Part of Mr. Willis, to u.form the I'ubl.c on . s av of tl.e approachin..,' Term, tl.at, in consequence ot the Absence .1 n, ,.f^ tic > tl ere was in his Opinion, no Court of Kmg's Bencii in 'i^^V^^c'^^l^^^^^^r contained some Explanation of the .^rounds 'cilici; that Opinion was formed, and of the ^^^'^l^^'^^^XX ■ !„.. tu,. hiipstinn- and t hev a so expressed his I'eais that ine >^icp nt, ntSe ' ; t^ke wild cr'ea e grea^t Public Lcitement through the Province Mr Wili VLetterrwere forwarded by the Lieutenant Governor, with such on Vv, Lfion to the Secretary of State as the Occasion called tor, and with U"e A •uiTthat if suchaSti should be taken as Mr. Willis announced the Ah te should ^ submitted (o the Executive Council, and the OpuPon of e I aw Ofticers be taken ; and that the Lieutenant Governor would then co n- rnini^^-emoT fully with His Majesty's Government on the Subject, lo Sr Wilhs a "hort Note was also wrilten, af which a Copy >« -jiexed. No. 5. The Document, No. 0, was received \ estorday *rom Mr. ^J lb- Nos 7 and 8 John Small. Mr. Justice Sherwood to his Excellency the Lieutenant governor, respecting Proceedings in the Court of King's E-^ach. York, 1 CO) June 1828. I BEG leave to state, for the Information of your Excellency-, that I repaired to the ludSs- Room in the Court House at the usual Hour this Morning, for Ben^h could not bf legally held without the Presence of the Cbj! j"^.H^^ L Two Puisne Judged; 'that every tlf S l-;etofor- d^3^^^^^ S:^^:?u£:=^ sr k^rsstla^^d V^t lat 1 e Gov?rt 'had n^Authority to give Leav. of Absence to -y • uage and.I informed ^^^J^f^^^^'^ ^ S' aSed' ^of'bSrclonrby K'Sg: 'Mr!wt:,':y sTarSg up publicly protested against my dcjng ".Business in Court, or adjourning the Court to any other Day and. af tei idteSJX^SrS^^iSendtlp^iS^wS^ th^ Remaiiider of the Te'rm. unless you'r Excelie.cy may think proper to give some Directions to change my Intention. pvtraordinarv T thouE-ht it my Duty to inform your Excellency ot tins extraoruinary Occu renV whS took^place in the Court where I have the Honour a thisli.no to presTd ; and I have done so in th. most concise Manner, in order to avoid M imnecessary Remarks on the unparalleled Conduct of Mr. W ilUs. 1 have, &c. (Signed) Levius P. Sherwood. ( ii-' ) (•2.) Mr. Justice Willis to Major Hillier. Sir, York, Up|)erCanadtt,3Ut May 1828. I HAVE to request the inclosed may be officially forwarded. I have, &c. To Major Hillier, Private Secreiary. fSigned) JoHN WaLPOLE WiLLIS. «ic. &c. &c. V fe / (3.) Major Hillier to Mr. Justice Willis. Sir, (iovernmeiit House, ;jil June 1828. As the Letter inclosetl in your Note to me of the .31st Ultimo, with a Request that it may be officially forw: led, is not accompanied by any Communication explaining, for the Lieutenant Governor's Information, that it relates to some Public Matter connected with the Government, or to any Subject of which it is necessary his Excellency should be apprized, I have received his Commands to return it to yoa, of course, unopened. 1 have, &c. The Hon. Mr. Justice Willis, (Signed) G. HiLLIER. &c. &C. &c. (4.) Mr. Justi'^e Willis to Major Hillier. Sir York, tapper Canada, 3(1 June 1828. I HAVE now to request you to lay the inclosed Letters (which relate to Public Business, in my Opinion, of the greatest Coyiscqttence to the Colony,) before his Excellency the Lieutenant Governor. Not having done so in the first Instance was entirely owing to my not being sufficiently acquainted with offi- cial Forms; and not, as I beg you will assure his Excellency, with the slightest Intention of any personal Disrespect. On the contrary, I conceived that by leaving the J.cttcis purposcli/ unsealed, 1 had done all that v's usual, and whac was least obtrusive on this Occasion, presuming that th s tters would not have been forwarded if any Part of them met with his E.^Lnency's Disappro- bation. Should I not now have pursued the proper Course, may I beg of you to point out to me, specifically, how I should proceed. I have, &c. (Signed) John Walpoie Wilms. (^0 Major Hillier to the Hon. Mr. Justice Willis. Sir Government House, 4th June 1828. I have the Honour to acknowledge the Receipt of your Letter of Yesterday, which I have laid before the Lieutenant Governor. I have been commanded by his Excellency to acquaint you, that your Letters to the Secretary of State and to Mr. Stephen will be forwarded. If those Circumstances should occur to which you call the Attention, not of this Government, but of the Secretary of State, it will remain for his Excellency to pursue whatever Course such Circumstances may appear to him to require. I have, kz. Tlie Hon. Mr. .Tustice Willis, (.Siened) G. HiLLIER. &c. &.;. kc. • V e y H (!■ ( on ) (0.) Mr. Justicf Willis to Major Hillici-. uj_ York, Upjier tiinada, 'iih June 1828. I MOST unequivocally declare, or rather repeat, that by leaving the Letters I inclosed to you open, and requesting tiiein to be laid before the Lieutenant Governor, my .Object was to call the Attention of his Excellency, as well as that of the Secretary of State for the Colonies, to the Jriiok of their Contents. I have, &c. To Major Hillicr, r. S. (Signed) J. W. WiLLIS, Judge. (7.) Duplicate Letter from Mr. Justice Willis to Major Hillier. Sir York, Upper Canada, I'th June 1828. Although, from the Communications I have already made, his Excellency must be apprised of my Opinion respecting the Constitution of the Court of King's Bench in this Province, yet as I publicly declared my Sentiments on this Subject in the Court House Yesterday, (the Eirst Day of Trinity Term,) in recalling an Order, so far as I was concerned in it, which was made without the Aid of the Chief Justice of this Province, I have to request you again to acquaint the Lieutenant Governor, that, in my Judg- ment, the Court of King's Bench, as established by the Provincial Legislature, cannot, without an crprcss Violation of the Statute, ' -^ ''eld, unless the Chief Justice, together with the Two Puisne Justices of the 1 .ovince, preside therein. I think, therefore, 1 should be acting ilkjally were I to sit on the Bench, and ;.„sumc, either alone or in conjunction with the other Puisne Judge, those Powers which are delegated, according to my Construction of the Act, to the Chif^f Justice together with Two Puisne Justices, and not to any One or 2Vo of tliem particularly, without the Presence of the Chief Justice. I shall, however, await his Excellency's Commands on this Subject. In the meantime I am, and always shall be, most desirous to disciiarge such of the Duties as, under existing Circumstances, I can legally perform. I have, &c. To Major Hillicr, (.Signed) JoHN Walpolk Willis. I'riva!'; .Secretary, &e. &c. &c„ . m Copy of Opinion delivered on Monday iCth June 1828, respecting the neces.sary Constitution of the Court of King's Bench established in Upper Canada. Sir, York, Uppei CuPnda, 17tli June 1828. I HAVE inc! used, for the Jnformittion of his Excellency the Lieutenant Governor, a Copy of the Opinion I d Jivered Yesterday. I beg most par- ticularly to call the Attention of his Excellency, not only to that Part of it which relates to the Establishment of the Court by the Provincial Legislature, but air.! ;.o the British Statutes to which I have referred respecting Leave of Absence, and the Consequences (in case those Acts have not been strictly complied with) so tiir as they may art'ect the pres2nt State of the Court of King's Bench, and the general Administration of Justice in this Colony. I have been prevented, by not having a regular Clerk, sending it sooner. I also inclose, for the same Purpose, a Copy of the Minutes of the late Pro- ceedings made by the Deputy Clerk of the Crown, and of an Application left with me by some Members of tfae Bar this Day ; with whicli I have so far complied, as to direct a Copy of my Opinion to be made for them, and to express my Readiness to act in any Way I legally can for the Furtherance of Justice. {, <37 ) Justice. I infbimeii Mr. Justice Sliersvood, >o long since us the .'M Ultimo, of the Conclusion I hail come to on that very iniportunt .Subject. May 1 request the Inclosures, after Perusal, may be transmitted to the C'oloniol Secretary. I h.ive, &c. T(i Miijor Hillier, (Signed) J. W. WiLLIS. Private Secretary, &c. &c. \c. Court of Kiiin'sHcncli, Itilli .luno I8JS. The Evil (owinpf to the Absence of the Chief Justice) of the frequent Ditterence in the Opinions expressed on the last Day of last 'reriii by the Senior Puisne Justice and myself^ in those Cases which hail been argued before us, and a Suggestion which I received on the Subject, has since led me minutely to investigate the Power and Constitution of this Coiut. Tiie Practice hitherto has been oftentimes for Two, and sometimes for One only of the Judges to sit ill Hank ; and I admit that I have on some few Occasions, and particularly during the last Term, incautiously followed this Practice, which I found had been jirevioiisly pursued by the Senior Judges of this Court ; J say incautiously, from the Conviction I now feel, and which it is my boundei Duty thus publicly to declare, that all that has been or may be done contrary to the express Provisions of the Local Legislature is altogether nugatory. First Section of the Provincial .Statute of tlie Si G. .3. cap. Q., to establish. &c. is in these Words, {read the Title nftlie Act. and t/ie First Section, vcrkilim.) These Powers are given not to the Individual persimally, but to the Court ; in which it is expressly provided, that His Alajesty's Chief Justice of thi.^ Province, together with Two Puisne Justices, shall preside. The Judges, therefore, have collective Authority, except in those Cases where it is other- wise especially provided for by the Legislature. The Origin and Existence of the Superior (?ourt, or Court of King's Bciicii, as it is called, in this Colony, is entirely derived from the Act of the Provincial Parliament. The Constitution of tiie Superior Courts of Common Law in Engianil is essentially different. The English Courts of Common Law originally emanated from the Aula Regia, which, according to Bracton (lib. 3. p. 1. c. 7.), was established l)y the Conqueror. These Courts, tiie King's Bench, Common Picas, and Exchequer, now consist of a Ciiief Justice and Three Puisne Judges in eacli Court. Bill, according to Dugdalc (Orig. Jurisd. c. IS.), tiiis Xumbcr has varied considerably in ditleieiit Pa'igns ; for it appears tiiat Kdwaid tiie Tiiiril had Nine Judges of the Common I'ieas; Richard the Secoiul. Five; that Henry the Sixtli changed the Xiiiiiljor Four Times ; tliat Edward tiic Fourth reduced it to Four ; and that Edward the Sixtli increased the Number from Three to Six, and afterwards to Seven. Blackstone also states lliat James the First, during the greater Part of His Reigii, appointed Five Judges in tiie Courts of King's Pencil and Common Pleas, yii/- the Benefit uf a casting- Voice in case of Difference ql' Opinion, and tliat the Circuits miglit at all Times he fully supplied with Judges of the Superior Courts j and in subsequent Reigns, upon the permanent Indisposition of a Judge, a Sixth has been sometimes apjiointed. See Blac. C^om. 1(). citing Raymond, 175. note ('.'!.) Tliese Pre- scriptive t'ourts, unlike Courts of Statutory Erection, exercise, as Lord Coke justly observes (see 4th Inst. 73. and 1st Blac. Com.), tiie judicial Power dele- gated to them from the Crown according to immemorial Usage, and have gained a known and stated Jurisdiction, regulated by certain and established Rules, wirch our Kings themselves cannot alter witliout the Aid of Parliament. (See also '2 Hawk. P. ('. '2.) The Justices of these Courts do not sit by virtue of any Statute wliicii says that the (,'hief and other Justices and Barons sliail preside in each or any of such Courts ; neither do tiieir Commissions, wliicli are tbunded on immemorial Usage, render this imperative. Serjeant Hawkins, indeed, says (vol. ii. page 2.), that regularly, when there are divers Judges of a Court of Record, the Act of any One of them is effectual if their Commission do not expressly require more; or I may add, which is the same Thing, if not otherwise provided for by the original Constitution of the Court, or subsequent Legislative Enactment, on which those Commissions are founded. I shall now proceed to sliew, that whenever any additional Power is given by Parliamer . to ( tiS ) I to till' .liui^as of ;i I'lTsciiptivi; ('(lint ol' Uecoiil, or that romt beoonies in anywise tliuOlijet't ofany NtatMtf, ami wherever a Court is originally constituteil hy Ac-t of Parliament, the .Statutory Provisions must, in all such Cases, be strictly com|)lieil with, whether the Judges act i)y virtue of any Commission founilcii on those Statutes, or immediately under the Acts themselves. Thus, with respect to the present Justices of Assi/e, those Judges came in use in the Koom of the ancient Justices in Eyre, Jnsticiarii in itinere, but are more directly derived (rom the Statute of Westminster 2, (l.J Kdward 1. 30.) That Act directs them to be assigned out of the King's Sworn Justices, associating to themselves One or Two discreet Knights of each County. In consequence of this and subsequent Statutes, Commissions of Assize and Nisi Prius, and also of Oyer and 'Jerniincr, are now directed to them, accompanied with Writs of Association ; but in order to prevent the Delay of Justice from the Absence of any of the Persons therein named, there is always issued, as of course, a Writ of Si non omnes, which directs that if all cannot be j)resent, any Two of them, a Justice or Serjeant being one, may jiroceed to execute the Commission ; j)lainly shewing, "that withou. this Writ of Si non omnes, all who are named in the t'onmiission nuist necessarily be present. (See 3 Bl. Com. 5H, 60.) Thus, too, when according to the I'reamble of the Statute 18th Elizabeth, c. 18., it was I'ound exj dient to alter the System of trying Issues tiiable in Middlesex, at the liar of the Sui'crior Coiuts, or to use the Words of the Preamble (which see and read, ii Evans's Stat. p. 2,j3.) That Statute enacted, (see and read the enacting Part of it,) the Chief Justice or Two Judges, &c. This Statute having expressly reciuired the Presence of Two of the Judges of such Courts whereof the C^liief was absent, and this being found inconvenient, it was not attempted to get through che Business by One Puisne Judge, sitting of his own Accoril, instead of Two, ns prescribed by the Act ; but Recourse was again had to Parliament, and the Statute of 12 Geo. 1. c. ai. sec. 3. (Evans, iH)5.) after stating in the Preamble that (read it), enacted (read the first Section), any other Judge. The important Statutory Duties which are now discharged, and discharged most admirably, by the present excellent Chief Justice of llngland, ba\e recently become so numerous as to prevent bis Attendance in many Instances in the Court of King's Bench of the Mother Coinitry, when it is sitting in Bank. The present Attorney General of England, who I am proud to call my Friend, lately alluded to this Circumstance in the British Senate, in the following Manner : — " I think" (said Sir Charles Wetherall, in the Debate on the State of the English Laws) "that no Question of Law " should be decided in the Absence of the Ciiief Justice of the King's Bench. " At present, from the Number of Causes he has to decide at Jsisi Prius, " actually abcmt 800 a Term, it is impossible he can attend to his highest " Functions ; and the other Judges only are therefore left to sit in Banco, " and decide all Matters of Law in wiiich the combined Opinion of the Court " should be taken. When the Ciiief Justice was the first Common Lawyer in " England, it was a Solecism in the Practice of the Common Law of the Country that a Case should be decided in his Absence." In tliat Opinion most cordially agree. I will now advert to those Statutes which relate more The Court of King's Bench in I particidarly to the Locitlity of these Courts. England, the Style of which is Coram ipse Regis, or Coram nobis, ^see 4 Inst. 7^.,) and net like that of the Statutory Court of King's Bench established in this Pro\ince, which, according to Mr. Taylor's Report of Boulton v. Randal, is Coram vobis, or (before His Majesty's Justices) is not, nor can it, from its original Natiue anil Constitution, be confined to any particular Place. The Statute 18 Elizabeth, however, as may be remembered, directed Issue joined in the Court of King's Bench, in Matters arising in the Coimty of Middlesex, to be trivd by the Judges of that Coiut in Westminster Hall : when, therefore, the King's Bench could no longer be held there, owing to the necessary Reparation of that Edifice, the Judges did not of them- selves, presume to try such Issues elsewhere, but resorted to Parliament, and the Statute I Geo. k cap. vJl. (see Evans's Collection, 3d vol. p. '281.) was passed, to enable the Chief Justice, or, in his Absence, any other Judge of that Com ' , with the Consent ot His Majesty, thus referring to the original Constitution of the Court, after the next Trinity Term, and in any future Terms, oy ) Terms, to try all Issues wherein Trial oii1aiul ; anil this, say tlic same Authorities, was by tiic Stat. l-lKdw. 3. (-.5.; for before it was deterniiiieil at tiie next Parliament, by a Prilate, Two Karls, and Two Barons, witli llie Advice of the Lords Chancellor and 'i'rcasiirer, the Judges, and other of the King's Council, as deemed convenient. Hut, says Chief JJaroii Coniyns (citing vJ Hulstrode, Rep. 14(), 7.), if after Adjouriunent a Judge dies, the Cause goes on ; though, if alt; r Argumetit another .fudge be made, he shall not give his Opinion. But a Cause shall not be adjourned to the Exchequer Chamlii'r before Argu- ment, and after Argument only if thi. Court be divided, or for Difficulty adjourn it of themselves. The Court of Exchequer (Jhaniber, to which I Iiave now alluded, is that which was erected by the Statute of U7 ICIiz. c. 8., in imitation of the original Court of Kxciiequer Chamber, established by the Act of .'}| Kilvv. y. c. 1^., to determine Cases ot' Krror from the ('ourt of I'-xchequer; and it is the ('onstitution of this last-mentioned Court, One of the earliest in our History of ])urely statutory Creation, to wliicii I am anxious to draw particular Attention. This Statute is in the following Words (see Evans, 349., and read it verbatim.) This Statute, says Lord Coke (Coke, i< Inst. 62.), raiselh a new Court, and before new Judges, ami is introductory of a new Law, by giving Cognizance of Error in the Excheijiier, wiiich shall be reversed in the Exchetjuer (.'hamber, before the Chancellor and Treasu.er, calling to them the Justices, &c.; but the Ciiancellor and Treasurer, that is, ihe Treasurer of England, and not of the Exchequer, (4 Inst. I0G7.), alone are .Judges in the Vi'rit of Error and the like. It was said by Sir Bartliolomev. Shower (Rex V. I}isho|) of London, Arg. Shower, Rep. 432.), " that as the Statute of Edward '• the Thirti prescribes the F)rm of redressing Error in the Court of Exchequer " Chamber, it is held to exclude all other Methods, being int-oductive of a '' new Law ; and though it be a peculiar Expression ;.(Iirmative, yet it implies " a general Negative too, for both can never take place; and all Prescriptions " and C'ustonis will be foreclosed by a new Act of Parliament, unless expressly " saved. A Custom cannot be prescribed against an Act of Parliament, " because the Statute is a Matter of Record, and the highest Record we " know." This Statute of Edward the Third, then, being a new affirmative Law, excluding all previous Customs and all other Methods of proceeding in the Court thus created, but those which are expressly pointed out, has been construed, as all other similar Statutes must be, in the strictest Manner. Thus it has been held, that though by this Statute the Chancellor and Treasurer are alone, as has already been said, Judges of this Court of Error, and the Justices and others merely Assistants, yet, if the Justices be not so taken, they being directed to be taken by the Act, it is Error. This is expressly declared in the Case in the Year Book, 8 Hen. J, 13., and in Brook's Abridgment, tit. Judgment, placituni 125, fol. 49., which I have examined; and the Effect of these Authorities is stated, nearly almost in the Words I have made use of, in Viner's Abr. tit. Judges (H.), under the Head of " Who " shall have judicial Power." Thus also it was held, according to Chief Baron Comyn, (Dig. tit. (Jourts, If).), after this Statute of Edward 3d, if the Court of EAchequer Chamber, thereby created, was adjourned, and at the Day of Ad- journment, both the Lord Ciiancellor and Lord Treasurer did not attend, the Writ of Error was discontinued, and the Plaintiff in Error was obliged to begin anew. To remedy this the iStat. of 31 Eliz. c. 1. s. 1. was passed. (See Evans's Coll. p. 353., and read the Title and the whole of the 1st Section.) But this Statute did not provide a Reiisi'dy for the Absence of these Officers at the Day of the Return of the Writ , theieibre another Act, that of the 1(3 Car 2. c. 2. was passed. (See 3 Evans's Coll. p.y54., and read the Title and the whole of the Act.) But as both the Statute of l^H.-^abeth and that of Charles 2d provided that no Judgment should be given iinluss both the Lord Chancellor and Lord Treasurer should be present, and there being then no Lord Treasurer, the Stat. 20 Car. 2. c. 4. (see Evans's Coll. p. 355., and read the Title and the whole of the Act,) was passed. I know of nothing that can prove more strongly than the legal Decisions and Parliamentary Enactments respecting this statutory Court of Exchequer Chai'iber, for reverring Errors in the Exchequer, the absolute Necessity of a IS scrupulous ( 71 ) scriipiiloiH ('()iii|»liaiicc with ;i Statiiti' which ititnuiiicos a new Law dy iTocling i» iR'w Court. Hut the Court I iiavc niciitioiiuil is not n solitary Iiistaiicc of tlif Obligation to a i.^'iii Ailhcrence to Legislative Knactments in such Case. The Stat. .'J IIen.7. c.l., by which the Court of Star Chamber was, if not terwards in the Ueign of c'stablisheil, at least remodelled, (a Court indeed af Car. 1. alt ogether abolished, to the general .loy of tlie v. Iioli' Nation. (_see Hi Car. 1. c. 10. 4. HI. Com. 'Jtiy.), is too remarkable and applicable to the It Sol (1. I nioticed the Preamble and ist Section of the Act.) It lias been held under this .Statute also, a , well :is that of Edward iJd, tliat none ace Judges but the Chancellor, Treasurer, and Lord Privy .Seal, by these Words, and that t!ie others are but Assistants. Lord Coke indeed (i Inst. (i'J.) insists, that this i^' t'lite ibd not raise a new Court, ailmitting tiiat if it had done .so, all, except I. Lord Chan- cellor and Lord Tiiasurer ami Lord Privy .Seal, woiilil be but As-istants ; but he says, as the Court formerly subsisted, aiid all the King's Privy Council were Judges of the same, liiat the Chancellor, Treasurer, and Privy Seal are Judges also. Lord Coke's Opinion respecting the Court of Star Chamber must be taken with great Allowances; but it matters not for the p'sent Case whether all were Judges or ' ...j merely Assistants, for it was determined by all the Justices accoiding lo the Authorities cited in Viner's Abridgment, which I liave already mentiopcd, that as tiie Statute ap|)ointed tiiem all to be called to the Court, and they were not so called, it was Krror. I will not stop to mention the Necessity of a strict Compliance with the Legislative Provisions which give Criminal Jurisdiction to the Court of Admiralty, in the Cases men- tioned in the Statutes ; nor shall I do more than merely allude to the statutory Jiuisdiction exercised in Kngland in C.ises of Hankruptcy, and the Necessity of complying, not only with those Statutes, but even with an Order of the Judge, directing Commissions which were auvhorized to issue by the Statutes not to be executed in the Country, unless he who is called the Quorum Commisi>i,,ncr be a Barrister. (See Lord Longhborougli's Onier, 12th August 1800.) If this Order be evaded, according to my Priend Mr. Whitmarsh's very correct Book on the Bankrupt Laws, and" which, from Practice, I know to be the Case, it is considered a good Ground i'm superseding the Commission. To my Mind, from what I have stateil, the inevitable Conclusion is, that if all the Judges directed to preside by a Statute which erects a Court should not be present, and ii.v.eed if those even whom the Judges are required to take to their Assistance should not be called and present when the Business of the Court is transacted, any thing which may be done in their Absence will be altogether erroneous and void. It follows, therefore, that unless there be some Exception in the subsequent Provincial Enactments, which I have not hitherto mentioned, authorizing the Absence of the Chief or any of the Justices of tliis Court, the Business, according to the Terms of the Provincial Act, cannot be legally transacted by the Court, as the Chief Justice, together with Two Puisne judges, must preside in it. In the .Sister Colony, and in that legal Division of it which adjoins this Province, it has been lately said, and the Fact can be easily ascertained, that when Sentence was very recently about to be passed on one Edward Burke (a Name too remarkable to escape Observation), for having returned from Transportation, contrary to the Condition of a Pardon which had been granted to him in 1818, when condemned to Death for a Burglary, it was discovered that the Provincial Statute of Lower Canada, of 3 Geo. t. c. 9-, continued by that of 5 Cieo. 4. c. 23., (neither of which I have been able to procure), enabling Two Puisne Judges to hold the Criminal Court of Montreal, in the yVbsence of the Chief Justice, had expired on the 1st May 1827, and consequently the Lower Canadian St",tute of the 34 Geo. 3. c. (i., (which I have seen), and w hich by the 3d Section requires the Presence of Two Judges in that Court, of whom the Chic'f Justice must be One, was revived, aiic' 'le Trial having taken place betbre Two Puisne Judges only, was held to be a > ity. The Absence of the Chief Justice of the Island of Prince Edward, in tlic Gulph of .St. Lawrence, has recently been the Subject of a Discussion in the House of Assembly of that Settlement, of the deepest Interest, not only to those immediately atlected by it, but with reteieiice to such Persons as may have been appointed to Otiice in any of tlie British Cdldiiies. '.' ) t"oloriic8. The Speech of the Attorney (Jeiieral, on the Messajfo of the f,icii- tenant Governor of that Island, relative to the Situation of Assistant Justice of the Supreme Court, is worthy of Attention. 'I'lie Chief Justice of that Province is uiiiMrsally admitted to be a (Jentlcman of the first Attainments and the highest Jiespectability ; but his Absence from the Ishind (wliich it seems he only visits periotlicaliy) is said to l)e felt there as the i^rcukst F.ril. In the Course of tlie l)el)ate I have alluded to, the Manner in which Leave of Absence is directed by the IJritish Statutes to be granteil to Public Officers in the Colonies formed a principal Topic ; and I shall now advert particularly to that Subject, as it is, in my Oi-inion, a Matter of the first Importance, to ascertain whether the Commissions which have been granted to any of the Officers of this Colony are affected by those Acts. The first I shall mention is the Stat. '2'i Geo. 3. c. 75. (read it ; Governor and Council, not the Governor nlone) ; the other is the more recent Act of the 5]. Geo. 'J. c.lil. (read it; (iovernor and Council to grant Leave.) It appears to me, then, from the Acts, that Absence from the Province without Leave is a Forfeiture of the Coninussion of the Person so absenting himself; that Leave of Absence must be granteii to all who hold Office in the Colonies, by the Governor or Lieutenant Governor and Council, and not by Governor or Lieutenant (jovern(jr alone, as, I am informed, has (though contrary to the Statutes' Regulations, and, in my Opinion, to every Principle of Law) frequently been the Case. On Inquiry at the Council Office here, I find Leave has ahioijs been granted by the Lieutenant Governor alone. As v.ell might His ALijesty the King deter- mine an Appeal from this Colony without the Aid of His Privy Council. The King can do no Wrong ; and I suppose that Maxim equally ai)plies to His Uepvesentativc. But the Law has wisely provided, that the King should act through the Intervention of his Ministers, who are responsible for their Acts. If Leave be improperly granted by the Lieutenant Governor, who is to be responsible? If granted to him with the Assistance of his Council, or, as the Statutes have provided, " by the Governor or Lieutenant Governor and «' Council," the Council is responsible in case o\ \ry Impropriety. It is evident such Leave cannot be granted, or even extended, in any other Manner, ac- cording to th(iM' Statutes, than by the Governor and Council, even the Secretary of State has merely the Power of corifirming, not of granting or extending such Leave. If, theri, such Leave of Absence shoidd not have been so granted, reported, and confirmed, as the Acts expressly require, or if any Officer should at any Time liave absented himself from the Province, without first having obtained Lea. J according to the Statutes, or should have remained absent for any Period to which such Leave granted by the Governor or Lieute- nant Governor and Council did not expressly extend, the inevitable Consequence, in my Opinion, is, that according to the Words of the Statute of ,51.0.8. c. Gl.' (which is a Penal Act, and to be construed strictly), such Officer must, by his Absence without such Leave, be deemed to have vacated his Office, and his Appointment must be considered, to all Intents and Purposes, void and of none Effect. But this is a Matter which may possibly have already at- tracted the Attention of the Legal Advisers of this Government. The Con- sequences of liaving assumed the Exercise of Office after Forfeiture of the Commission is too serious, I should imagine, to have escaped Observation ; and I now mention it, that in case it has not hitherto been noticed Steps may be taken to obviate the Evil which must necessarily liave occurred. I allude more particularly to iiiis Circumstance, as it materially serves to strengthen the Arguments I have urged to shew the absolute and invariable Necessity of a strict and rigid Adherence fo the Provisions of the Legislature. It now only remains for me to examine such other Enactments of the Provincial Parlia- ment as relate to the Number of Judges required for the Performance of any Part of the Business of this (?ourt. I have hitherto postponed this ne- cessary Enquiry, from the Conviction tiiat nothing will appear which can in any Manner atiect the Doctrine I have endeavoured to enforce, or obviate the Necessity of the Chief Justice, together with Two Puisne Judges, presiding in this Court. The 4th and 5th Sections of the Provincial Statute of atGeo. 3. cap. 2. enacts,— (Read them.) What has been said respecting the Presence of all the Judges in the Exchequer Chamber, at the Return of the Writ, i I > J Writ, iiKiv not liavt' hcen rorjjottt'ii. Tlicsf Si'clioiis aro roiu-aliul liy tiie )(iil)si'(|iieiit and leceiit I'lovmcial Act of 'J (iuo. I. o;i|). I. si-c. 1. ; Imt the UU Srftion enacts as (bllows, (wliicli read). On tliest; I'rovisions I must ol)servc, that it' the I'rocess of tliis Court be considered as analaf^oiis to orijjinal Writs in Kiif^land, sncli Writs may, and frequeniiy lio, acconhng to the Case of Wiiitheaii and IJuckland. in Styles* Reports, p. KM., hear Teste, and are issued out of Term ; and even if the orif,'inal IVocess of lliis (.'onrt he considered merely as a judicial Writ which only issues in Term, yet there is so great a Difference between Teste of Writ, (wliich is the Heginninif of an Action, and may be as well in the Name of one Juilge as another, pro- vided the Law so ])ermits it,) and the deciding a Case on solemn Argu- ment in Court, and in whicli Court the .Statute says the Chief Justice, together with Two I'uisnc Judges, shall preside, that it is impossible f()r any rational Mind to believe that this implies IVrmission tor the Court to lie held in the Absence of the Chief Justice. The Senior Puisne Justice may act alone in the solitary Instance of the Teste of a Writ, but in no other. The I'.nU .Section of the 1st Statute enacts. (Read it.) The Kith Section of the sul)se(pienl .Vet, by which this is repealed, says. (Read it.) In respect to tlie Trial of Issues in the Home District, here the analogous Rritish Statute in regard to the Trials of such Issues when arising in the County of Middlesex, which I have mentioned, may perhajis be remembered. The Kxceptiou made by the Ligislature in providing for the Absence of the Cliief Justice in this Instance, strongly shews the Necessity of jiis Presence in all others, when it is not specitically dispensed with ; and I need scarcely say how great the Dis- tinction is between sitting in Rank, to correct the Krrors tiiat may have been connnitted at Nisi Prius, and presiding in a Court of the latter Description. The iiOlh and 'i7tli Sections of the 1st Statute enact. (Read them.) These are repealed, but re-enacted by the subsequent Statute, the .'>!)th and 10th Sections, which are as follows, (ivead them.) And surely if tiie Presence of tlie ("hief .liistice be necessary to make a Commission f()r taking AlKilavitsof Rail, it is much n>ore so to ileciile important (Questions of Law. The 4;ith Section of this last Act, that of 2 Geo. 4., enacts, &c. (Read it.) T!ic recent Knglish Statute, .i Geo. l. c.6\)., of a somewhat similar Nature. (.See 3 Evans's Coll. Add, lo. 30!)., and read the Tilk and Ihc First Section, and remark on the Words, togetlter Xiith ,iiij Three or more oj' them.) Ry " the Court," in the Provincial Statute, I tiiink is clearly intended, the Court as j)reviouslv con- stituted ; that is, the Court in which tlie Chief Justice, together witli Two Puisne Justices, shall preside. These, I believe, arc all the Enactments of the Provincial Legislature which have any Reference to the present Subject ; none of which, I am convinced, permit this Court to be helil otherwise than as expressly directed by the Ist Section of tiie Local Statute of .Tl (Jeo. 3., l)v wiiicli the Court is created. After much Reflection on all the Opinions wiiich I have publicly anil deliberately delivered in this Court, there is not One which I coulil now wisli in any Alanner to alter, save indeed so far as I may have sanctioned the illegal Practice, as I consider it, of this Court being held without a full Atteniiance of the Judges. Those Opinions, however, which have been jiroiiounced, as well as an Order, thougii in my Opinion a very necessary one, which was made last Term in the Absence of the Chief Justice, and which Order, as far as I am concerned, I no.v recall, cannot, I firmly believe, be of any Avail until reiterated in this Court, when it shall be filled according to the specific Directions of the Local Statute. Severe Industry and legal Application has from long Use become so habitu.d to me, inde- pendently of the solemn Obligation to endeavour usefully and j)roperly to apply whatever Talent I may possess in liischarge " of the Diitit s of that State of " Life to which it has pleased God to call me," tiiat the interruption of the Rusiness of this Court, as it regards me individually, wi'' be ratlier irksome than pleasurable. I shall remain at Hand to attend to an of those Functions which I can legally discharge. I have now endeavoureil to perform a solemn anil iuipi laiive Duty, I blame myself for having, under any Circumstances, entereil uyo^ my judicial Euue- tions without sufficient Examination of tiie statutory Pro\ ^ioiis t()r the .fiuii- ctiture of the Colony. I trusted to what I fimiid to be the Practice on my T Arrival, ( 74 ) Arrival, In-lioving lliut my IJri'tlircn hail, in the Course of their lon^' Professional Career in tliis Province, made themselves acquainted with the Distinction which, in England at least, subsists between Prescriptive Courts and Courts constituted by Statute. I am deeply sensible of the Public Inconvenience which must result from the Conclusion at which I arrived. No Man can be more alive to tli^' leariul Consequences which the Public and Individuals cannot, but sufler from the awful Fact, that the Administration of Justice in this Province has not in many Instances been according to Law ; and that much which aflects the Rights, the Interests, and every thing dear to a Com- munity, cannot be rescued from .Jeopardy in the present State of the I^ws, which must (until altered) he rifiidhf observed. A true Copy. (.Signed) John Small. (9.) Memorandum of Deputy Clerk of the Crown. Trinity Term, 9 Geo. 4. UJth June ISQS. Present, The Honourable Mr. Justice .Sherwood and The Honourable Mr. Justice Willis. Upon the Judges taking their .Seats Mr. .Fustice Willis stated, that by tlie Provincial Statute 3 1 (ico. 3. c. 2., which established the Court of King's Bench in this Province, it is enacted, that the Chief Justice of tiic Province, together with Two Puisne Judges, shall preside in the said Court. That the Chief Justice being absent, in his Opinion Two Puisne Judges could not legally constitute the Court; that therefore he should decliae interfering, except in such Matters as he could disjmse of as a single Judge of the Court. Whereupon Mr. Justice Sherwood oniered the Court to be adjourned till To-morrow at Twelve o'Clock, against which Mr. Justice Willis protested, as in his Opinion there was no Court to adjourn, and thereupon withdrew; when Mr. Henry Draper was sworn a Barrister, and the Court adjourneil, by Order of Mr. Justice Sherwood, till To-morrow at Twelve o'Clock. Ordered by Mr. Justice Willis, that the Rule of this Court made in Easter Term last be rescinded, so far as his Authority is concerned, the same having been granted, in his Opinion, contrary to Law, the Court not being full at the Time of passing the same. A true Copy. (Signed) John Small. Easter Term, 3 Geo. t., from 2'2(1 April to Ith May lii^'^2. Present, Honourable W. Campbell. Honourable D'Arcy Boulton. Trinity Term, 3 Geo. 1., from 1st July to 13th July 18'2'2. Present, Honourable W. Campbell. Honourable D'Arcy Boulton. (10.) Application made by Dr. Baldwin and others, relative to the State of the Court of King's Bench, 17th June 1828. May it please your Lordships. The Opinion delivered Yesterday by his Lordship Mr. Justice Willis, on the resent State of the Court of King's Bench, is of such Importance to the 'iiblic, and so deeply involving ourselves in the Discharge of our Professional Duties to our Clients, that it becomes indispensably necessary to consider the Matter of that Opinion most maturely. Feeling that such proposed Con- sideration may be imperfect, without also having the deliberate Opinion of ills Lordship Mr. Justice Sherwood, we beg Leave to express our Hope that we shall hear such hi"? Lordship's Opinion also. It I' f ^ It would be very Siitistacttiry til iis i,. he lavonri'il with nmiiiuh (opiiM of those Ojiinions, yi't knowing this to be in tho Option of vopi I.onlships, we tmsl you will excuse this I'art of the Application, if at all unpleasant. We ilo not wish to trust to the hasty Notes taken by ourselves, or the Kilitors of I'uhhc Prints. We would not willingly press upon your Lordships with any inconvenient Haste; but under the present ("uciunstances Time is not at oiu- Disposal, and tberelbre trust, that if iiis Lordship Mr. Justice Sherwood shoulii decline an early Delivery of his Opinion, so very desiralile to us, that he would be pleased to withhold his .Judgment in any Case wherein our C:lients may happen to be interested, until, as their Counsel, we be better atlvised as to the ''curse to be adopted. W. W. iJuuwm. .1. Wasjibuiiy. HoBT. Baldwin. A true Copy. (Signed) John Small. Inclosure, No. 2. Report of the Executive Council respecting the Ciicnmslances which have lately occurred in relation to His Majesty's Court of King's Bench in this Province. Executive Council Chamber at York, Friday, 27th June 1S28. Present, -n- The Honourable James Baby, President Councillor, The Honourable Peter Jlobinson. The Honourable (ieorge H. Markland. The Honourable James B. Macaulay. To his Excellency Sir Peregrine Maitland, K.C.B., Lieutenant Governor of the Province of Upper Canada, anil Major Cieneral commanding His Majesty's Forces therein, &c. &c. &c. May it please your Excellency. Thk Coup ; having considered your Excellency's Reference of the 18th Instant, with the accompanying Documents, resj)ecting the Circumstances which have lately occurred in relation to His Majesty's Court of King's Bench for this Province, and requesting any Suggestions the Board might have to offer, with a View to remedy the Inconveniences that may accrue to the Public, as well with regard to the present Term as to the approaching Circuits, most respectfully report as follows : It appears that the Honourable Mr. Justice Willis (who was sworn in a Puisne Judge of the said Court on the 11th October last) recently inclosed to your Excellency's Private Secretary Two unsealed Letters, aildressed respec- tively to His Majesty's Principal Secretary of State for the Colonies, and Mr. Stephen, the Counsel for the Colonial Department, with a Request " that " they might be officially forwarde.:." These Letters were, by your Excel- Heferencc lency's Commands, returned to Mr. Willis unopened, your Exceil*'ncy "not and NO. 2. " having been nuide aware that they related to any Public Matter connected " with the Government, or to any Subject of which it was necessary yoir " Excellency should be apprized." Mr. Willis in answer requested them to be laid before your Excellency, as " relating to Public Business, in his " Opinion, of the greatest Consequence to the Colony," attributing his not having done so in the first Instance to "a Want of Acquaintance with official " Forms," not from any Disrespect to your Excellency, and in tlie Presump- tion that ti ( y would not have been forwarded should any I'art have met with Disai)probati()n. Mr. Willis was informed, that his Communication would be transmitted ; and at the same Tinie it was intimated to him, that siiouUl those CircumsUuices occur to whicii he had called the Attention, not of this (ioverninent, but of the Secretary of State, it would remain for your Excellency to piirsne such Course as No a. No. 4. No.i. ( 7<' ) I H>-6. us they niiplit Mi'ciii to rt'(|iilic. In reply to wlncli liin W^inN werr, that In- " imeqiiivDcally tli'cliircil," or " rathor ri-ptMti'il," th;it by thi- Ctniisi' lie hiid tiikfii Ills Ohjict \Mis to call your KxcfiU'iury's Attention totliewliiiK C'onlonts of his ('oiri'spoiidi'ncL'. On tilt' I71I1 Instant Mr. Willis, ailvertinjf to his fornuT Coniinnnications, statftl, that ht! iiail in the ("curt House the Day picvionsly pnhlicly ileelarcii his Sentiments res|)e■•' ■■ii."> im: iniyai iiisiriicdons lo ins r.xceiiency tile Governor in Chief, bearing Date the '.'(ith ALircli is|(i, 'IVo Years after tiie pas- sing of the Imperial Ac. iKJeo. .'J. caj.. (i,5,. it is d( dared, tiiaf if any Men\!)ers " of the Lxecutive Council residiig i„ tjie Province siiall will'uliv absent them. froiii his Kxcellency, or for I'laces shall become void selves li)r the Space of .S7.; Mimf/is without Leave " One Year without Leave from His Majesty, their , and in Mr. Ilnskisson's Circular of the .■JUth .Faiinary last upon the same Subject, he speaks throughout, of the Leave obtained in the Colonies as being granted by the Head of the Government ; and wilhoiil iloubliiig his f i Power to extend such Leave, he reijuires .Ajiplicatioiis for that Purpose (o bo accom- oanied by the written Authority of ti'e (iovenior, or to he made belbie the Expiration of the first Leave, at a Period suliieii'Utly early to enable the Secretary of State to obtain the Opinion of the (iovernor be'bre he complies with the Request. It is likewise to be remarked, that in tl-- Province, and the Conn-'il believe in otlier Colonies, Leave of Absence has usually, if not at all Times, been granted by the Governor alone in his Discretion ; and that such Leave, so far from being disallowed us illegal or irregular, has been not only sanctioned, but fieqiieiitly exteiuleil by His Majesty's Government. Independent, however, of this Question in the Abstract, the extra-judicial Character of Mr. Justice Willis's Opinion has not failed to attract Notice. It appears that a few Weeks ago, without the .Sanction of your Kxcellency, , e took upon himself to visit the Kxecutive Council Office, one of the most confidential belonging to this (Jovernment, and there enquired from Mr. Lee, the Junior Clerk, " wliether, when the Judges made Applications to go Home,' " it was communicated to the ':'')uncil ?" who replied, that he never saw any such Communication entered in the Council Hooks j but thought Applications for Leave of Absence were maile to the Lieutenant Cioveriior, ^ Upon this Answer, so obtained, and which it may be doubted whether a Court of Justice could have exacted, he, uncalled upon by aiiyjiidiciul Pro- ceeding, gratuitously passed his Judgment upon tlie Validity of many Commis- sions to Patcr't Officers of the Colony, every one of which, thus prejuilged, might, by Possibility, hereafter be brought before him on Scire facias for regular Adjudication. It is not competent to a Judge to notice, judicially, any Tacts, unless admitted by the Nature of the Pleadings before him, or ascertained by the Verdict of a Jury ; and the Assumption of an inquisitorial Authority, :;ought to be exercised in the present Instance, the Council consider incompatible with the good Order and Security of the Government. They find nothing in the Discussion of a similar Topic by the Attorney General in another Colony, in his political Capacity as a Member of Assembly, to call for or warrant its attenqjted Adjudication by a Judge of this Province in his judicial Capacity as a Member of the Court of King's Rencli. Adverting to that Part of the Opinion delivered by Mr. Justice Willis which respects the Legality of holding the Court of King's Bench in the Absence of the Chief Justice, it appears uj)on Examination, that previous to the Division of the late Province of Quebec into Upper and Lower Canada, Courts of Civil and Criminal Judicature were established therein by the Ordinances 17 Geo. 3. c. I and 5,, passed by the Governor and Council, exer- rising a Legislative Authority in that Province ; and that at the Time of the Division of the Province of Can.-ida, by virtue of the Imperial Act 31 Geo. 'J. U No. 13. No. U. ■ap. ( 78 ) Sec. .), 6 Sec. li. Sec. 1. Sec. 19 Sec. 26 & ■. Sec. .'iO. Sec. 3 1. Sec. 33. Sec. 36. &c t;ij). .)!., tliat Part now loiiipipsing Upper (.'ariula was ilivided into Four Districts, naiiiely. Lunenbur^li, Meckicnburffji, Nassau, ami Hesse; in oacli of wiiicli was estabiislRHl a Court f)f' Comnuin Picas, the Duties whereof were (lischargeil by several Judges, generally selected tiom tientlenien oi the first Cliaracter und Qualifications resident in the District wherein they officiated; at least in all except tlie Westernmost District (Hesse^, wherein, tiiose nomi- nated in the first Instance having declined to act, the Honourable William Dunmer Powell, lute Chiel' Justice of this Province, first Judge in that Dis- trict, performed the judicial Functions alone. In July 17!),', after the Division of the Province, the late William Osgoode was, by the late Lieutenant Governor Simcoe, appointed, under the Great Seal of Upper Canada, " Chief Justice of and in the Pro\ince of Upper " Canada, in America," dcring Pleasure, and his Residence in the said Pro- vince, " witn fidi Power and Autlioiity to huhl the Supreme Courts of Judicature " at such Places and Times as the same might and ought to Iv helil within " tlie said Province." On the 9th of July 1794 (Mr. Osgoode then being Chief Justice of this Province), the Provincial Stat. 34 Geo. H. cap. i.'. was passed, for establishing a Superior Cc ut of Civil and Criminal Jurisdiction, and to regulate the Court of Appeal. The First Section enacts, ■' That there be constituted and established, and «• there is hereby constituted and establislied, a C!ourt of Law to l)e called " and known by the Name and Style of His Majesty's Court of King's Bench " for the '.'rovince of Uj)per Car.ada, which shall "be a Court of Record of " origina. Jurisdiction, and shall possess all such Powers and Autliorities as " by the Law of England are incident to a Superior Court of Civil and Criminal " Jurisdiction, and may and shall hold Plea in all and all Mrnner of Actions, " Causes, or Suits, as well Criminal as Civil, Real, Personal, and Mixed, " arising, happening, or being within the said Province ; and may and shall " i)roceed in such Actions, Causes, or Suits, bv ^jch Process and Coinsu as •• siiall tend, with Justice and Dispatch, to aetermii;e the same; and may " and shall hear and determine all Issues of Law; and shall also hear and, " by and with an Inquest of good and lawful .Men, determine all Issues of " Fact that may be joined in any such Action, Cause, or Suit as aforesaid, " and Judgment thereon give, and Execution thereof award, in as fidl ami « ample a Maimer as can or may be done in His Majesty's Court of Kinir's " Rench, Common liench, or, in Matteis winch regard theKing's Revenue, by •' the Court of Exchequer in I':ngland ; and that His Majcsiij's ChieJ' Justice " of this Province, together Kith Tzco Puisne Justices, s'lall preside in the said " Court, which Court shall be liolden in a Place certain, that is, in the City, " Town, or Place where the Governor or Lieutenant Governor shall usually " residi ; .md until such Place be fixed, the said Court sliall be lioldon at the " last I'lace of .Meeting of the Legislative Council and Assembly." Provision was then maile fo/ the Sitting of this Court ; and Four " Sessions or '' Terms " were appointed in each Year, in which each alternate l.)a\ was to be a Return Day. The Practice and Course of Proceeding was in various Respects established. Adjournments from one Return Day to the next immeiliate Return Day were sanction.-d. All WnU: were directed to be tested in the Name of the Chief Justice, or, in his Absence, by the Senior Puisne Judge. All Issues joined in the said Court, triable in t!ie Home District, or the Dis'trict in whicii the Court was holden. to be tried by the Chief Justice, or, in his Absence, by any other Judge, either in Term Time or within Ten Days thereafter! The Justices of the said Court, or any Two of them, whereof the Chief Justice to be One, were authorized to appoint Commissioners for taking Bail and administering Affidavits in the .ral Autliorities hearing upon the Question, tiie Council deem Ilepetiiion iinnecessaiy and snnerfluons Lpon the same Day that the IVovincial Statute .'U Geo. 8 c,p " was passed, the Ilonomablc William Dunmer I'owell (until that Time a riui'-re of the Common Fleas) was appointed a Puisne Judge "of the sai.l Court of " ^'"« ' "'^"'^'' '•"'■'"« Pleasure, and his Residence within the Province with "JuUlou'C- and Authnrity U, hold the sairK oiirt uf King's lienvh at si,cli places •' an.I Times as tne same mi-lit and ought to he held." ll,s Commission hears Date at iNiagara, then the Seat of the Provincial (iovernment. In 17<»7 the Scat ot Government was removed to York, where it has ever since continued I he lateUi.ef Justice Osgoode framed this Statute; ami luin-' hv the Act authorized to preside in the Court as " His Majesty's Chief .h.stice of the " 1 rovince, ' appointed to " hold the Supreme Court's of Judicature " it does not appear that any new Commission was deemed necessary for lii'm The Circumstance of his being Chief J;«//Vr of the Province, cominissioned to hold the Supreme Courts ot Judicatu.c, not any particular Court hy Xamc, at the passing of the Statute a!)ove recited, may seem to explain that Part of tlie Pirst Section wh'ch provides, not that « Chief Justice with Two Puisne Justices but that His Majesty's Chief Justice of the Province (aihuling to an Office already creatcHl, of which Mr. Osgoode was the Incumbent,) should preside, lo"-ether with 1 wo Puisne Judges; not that the Three should preside, but that the Chief Justice of the Province, with the Two others, should form the Kstablish- nient of tlie Court in which the Chief Justice was to presiile. As the Chief Justice uniformly presides iw other Courts consisting of Two or more Judges o which he is Ilcac", he presides over the Court at all Times, but not hnn.' al wayr i)resent canr.ot i)ersonally preside at eve-y Sitting of the ( 'oiirt. In November 179I., by a Commission under the Great Seal, tested in the Name of the late Lieutenant Governor Simcoe, reciting tiiat " the IJench was " empty by the Removal of the late Chief Justice, and that a Second Puisne " Judge had not as yet been appointed," the late Mr. Russell was authorized to act m Ills Majesty's Bench with the Honourable William Dimmer Powell at all limes when his Presence should be necessary, during the Term of Easter then next. Mr. Powell was the only Judge of the Court r. uned in the Commission of Oyer and rermmer and General Gaol Delivery, and of Assize and \isi Piius in the Year 177 Mr. Russell was several Times appointed " to sit on tin Hench' with llie last-named Chief Justice, by reason of the Absence of Mr. Justice T owell, each Commission limiting the Ap|)ointment to the next succeeding ferm ; !)ut in the Commissions dated respectively in December I797 and March 179s, a Deviation in the Form took place. In these is recited that Part of the Provincial Statute which enacts" that tiie Chief Justice, together with Two " Puisne Judges, shall preside in the said Court, and that the vacant Seat of •' Second Puisne Judge bad not been filled," wherefore fie is appointed " to " fill such vacant Seat for the next ensuing Term." In 171/8 the late Henry Allcock v.as appointed to fill the Place of .Second Puisne .!udge, and now for the first Time was tiie Rench full. Since the latter Period various A|)pointments have taken place, both in the Oftice of Chief Justice and of Puisne Judge, of which a Schedule' is herewith respectfully submitted. Upon comparing the Commissions, it appears that ail tiiose to the Chief Justices follow the Terms of Osgoode's in \',^Ji, and tliat all issued to Puisne Judges are similar to tl<-! One granted to Mr. Powell in I791., on his first Appointment to the Court of King's Bench. 'Ihe Return from the Office of the Clerk of the Crown and Pleas exhibits the State of the Court as respects the Judges present during each Term, from its No. Ij. No. It;. No. ir. No. 18. No. 19. No. JO. ( 80 ) No. 21. its Forniatioii to the present Day ; ; "it it i.slai)iislics tlic Facts, tliat out ot IS.C- Teiins 56 only iiave been lielil by tiie Chief Justice and Two Puisne .Judges; that .5'J Terms have been iield l)y a Cliiet' .Justice and One Puisne .ludjje ; tliat 15 have been hehi by Two Puisne Jutiges; and 5 by One Puisne Judo-e alone; so that it may be inferred, from the immediate Appointment of Mr. Justice Powell as a Puisne Judge, without any Associate, with the Know- ledge of the Learned Individual at that Time Ciiief .Justice of the Province, under whose Superintendence tlie Bill was |)rcpared and tiie Court organized, and from the Practice ever since prevailing, that, independent of other Construction or Authority, the constant Presence of Three Judges was not; contem])lated, although tlie Appointment of that Number was provided for. The Council have carefully perused the Oi)inion submitted by Mr. Justice Willis, as well as those of the A'.''jrney ar.d Solicitor General ; and though n|)on a Question purely legal they conceive themselves warranted in acting under the Ue])orts of the Law Oliicers of the Crown, witliont attempting the Discussion of technical Points, with which they cannot be supposed to be fiimiliar, yet on the inesent Occasion they tiiink it proper to declare, that, after the best Consideration they have been enabled to give the ALitter, they not oidy concur in the Opinions exj)ressed by the Crown Oflicers, but find them sustained by the Practice of every Judge who has hitherfo held Office in Uj)per Canada, and Ijy the |)ositive Declaration of Mr. Powell in a Communication dated lOtli August ISOJ). Viewing the Subject in this Light, and referring to the .tccompanying Legal Opinions for its full Elucidation, tlie Board proceed to consider the Embarrass- ment occasioned by the Steps publicly taken by Mr. Justice Willis. They readily admit that, unless corrupt Conduct can be imputed to a Judge in the legitimate Discharge of his official Duties, the Independence of the Bench, as well as the Interests of the Government and the Community, .equire that he should not be amenable to account for the Opinions he may form, or the Judgments be may pronounce. Without, therefore, attaching any Blame to Mr. Willis for exercising his Judgment as to the Construction of the King's Bench Act, the Council never- theless tlissent from tlie Manner in which he made public that extra-) udicial Opinion upon a Question of the greatest Moment never before agitated". The Council consider it not only extra-judicial, but exceedingly indiscreet, as tending to disturb a Practice of 'Thirty Years, under the Sanction of all the Learned Judges hitherto ajipointed to the Court; .as calculated to excite Public Alarm, and to create Distrust in the constitui.onal Authority of the Tribunals of Justice. The Decision of a single Judge could not .set at rest the Question, even in the King's Bench itself ; and the Course adoptt' obviously tends to procrasti- nate the Business of the Court, to delay and jjcrplex Suitors, and to check the due Administration of the Law as hitherto enjoyed, without affording aii" Opportunity of Appeal to a higher Jurisdiction. As a Judge of the Court, and as a Public Servant of the Crown, his Duty was to communicate bis Opinion to the Government of the Colony, in order that, if found just, Measures might be adopted to obviate the Difficulties that would otherwise fb'low ; and in the meantime, unless called upon to deliver a judicial Opinion by some Plea to the Jurisdiction, Things should have been suffered to continue in their usual Course. Tiie following serious Evils must arise from the Secession of Mr. Willis from the Bench, unless a timely Remedy bt provided. 1st. The Obstruction experienced during the present Term in all the important Business of the Court. yd. The Want of Courts of Assize and Nisi Prius. As the Circuits uniformly take place in tiie Summer Seasons, antl 0"ce only witliin the Year, a Delay most injurious to the J'.iblic must attend their threatened Interruption. 3dly. The Want of an efficient Court in Michaelmas Term, which will commence on the 3d of November next. Eor SI I'oi slmulil Ml. .Iiistici- Willis even tleini n compett'iu to hiin to act as a Jiidjfi- ol' Assizi\ and to try Nisi Piins Ki'conls, jiassod in tiif AbsciKi' of tJu> Cliief.fiistice, yet it may he (|iiosti()neil wlu'tluT CoiiMMjiK'nit's \\o\r,v than a total Siis))(Misi()n of Civil IJiisnu'ss nii:;lii no' ho appiciuMidi'd. It cannot he expected that a Niind)er of.hidu'es-iiHicicni to hold a( onrt, in his ( un>ti iiction of the Law, will he present in the I'rovince in Michaelmas 'I'erm ; and as he. oi course, would not otherwise attend himself, nor iecoL,Mii/e its Lciruhtv, if a.ssenil)led without the IVe-ence of the Chief Justice, it is not prohnhle lie would, when required, report the rarticulais ol any Cases tried hetbie liim on tlie Circuit ; and as various I'oints of Law would" demand the Consideration of the Court iipoi) Motions for new Trials, Points reserved, and the like, during that Term, the obvious Prejudice to which the llightsand Interests of Suitors'inust be exposed need not be pointed out. With a \'iew to remove these Kmharrassnunls. the Expediencv of the temporary Appointment of an additional Judge suggested itself to the Council ; but the Crown OHicers, in their Report ii|)on Loiil IJathurst's Dispalcli of the NV 2J. ytii April IS'27, referred to them by his Lordship's Direction, express much Doubt as to tiie Prerogative Right to increase tlie present Kstabiishmeiit, witiiout the Sanction of a Legislative I'rovision ; and they advise, that, under such Doubts, it would be inexpedient to act without that Aiithoritv. The Attention of the Council was next turned to the Consideration, whelliei a Suspension of Mr. Justice Willis until His Majesty's Pkasure should be made known would enable your Excellency to prevent tiie Inconveniences which must result from the Want of the usual practical Administration of the Law:" This Enquiry led to the Conclusion, that as no actual Vacancy would be pro. duced by such a Measure, your Excellency w'ouid still be precluded fioin artbrding the desired Relief. Thus circuitistanccd, the only remaining Alternative necessarily became the Subject of most anxious Deliberation. 'J'iie Council were aware that the Coit-iial Offices are hehl ilnring Pleasure, and they had been adviscil of the Power of tii is (iov(>riinu'iit lo;eino\i' a.Iiidge of N". .';i- the King's Hcncii, iiimn Grounds justifying the Measure, liul while they tb.'in selves felt the utmost Reluctance to propo.se sue!' a Coir .e, unless drivcti U; >• by extreme Emergency, they were also well assured, that it wouhi alw.iys be more satisfactoiy to your Excellency, and less liable to Exception bv the P.'rlies implicated, tiint the Exercise of such Discretion should he sutlered to re with His Majesty's Cjovennueiit. Tl' y dill not fail to consider that in England, so long ago as the lyth W. ii., it wa., enacted, that the Judges of the Sui)erior Courts in that Coimtr, siioidd iiold the!:- Commissions not, as formerly, diiiing S'leasure, but du-iiur good Hehavioui, removable, however, upon the Address of both Housesof Pari aient; aviii ihat by the 1 Geo. ■". c. "'iiise of tiie Crown. Xor wi^re they iinniiniii;il that Mi ;:i',c Majcsl hiul been ))leased to iledaie, that " he looked .'pon Mie cipnghtness and " Independence of the . I iitlges as essential ti the impaitiai Administration ol " 'ustice, as one of tiie best Securities of tiie Righ'.s and Liberti 's of Hh " .Subjects, and as most coiuiucise to the Hciinur of the Crown. In accordance with these Principles, th: t >uncil were strongly impelled to submit to your Excellency, that it w.iuld be desirable, as far as possiblr, to make tnein practically ajipii' able to those high t)tiices li'?re, referring it to His Majesty'.s Pleasure lo determine wlicn the Public Welfare should render a Removal necessary. IJut these Sentiments wer. a et by Time to ieceive an .\nswer to m Ciicri's ; and that, in liie iinana Interest.^ invoked, would iook wiih Coiitiderce to yon to prevent tlie Couist of !egal Administi ition, wiiic!i ! Period, from being unnecessarily interrupted. Wiiii the siiicerest Desire, therelbre, of avoiding the ini.nediate Renivixa! of Alr.Wiilis, and of still maintaihing 'iie beneficial Operation of .iie Laws, the Council, on the 'J.lth InsttiU, addressed ':> him a Letter, i wliich. referring t'> that Passage of his Note of the I7tli listant, where lie stated, " That he was No. J4, \ " and Convictioii, th:it there would not be . Reh.'ience '>efbre the apiiroacliiiig the Public liaving mos' cMciisive xcellency'.s Ui duiu •jxisted for ->( long a No. I'i No. 2(;. No. 2/ Sve Note I ■-'!». Co. L. IIU'.'. ( m } iuui always -lioiild In- most ilesiroiis ro iliscli.ii^c siuli of tia- I)ulii'> as, under " fxistiiii; ('irciiinstances, lio could li'nully i)erfoim ;" and intimating to him, that" the (iovernment had ever been of' Opinion that the Conrt of Kinjr's " Hench had been legally held, and the Duties of the.Indges well understood ," the Hoard requested any Kxplanation " .'ic? nni,'ht l)e |)!ease(l to offer respect inj; " the Duties he eonteiipiated, as well with ri'irard to the Terms and C'liamher '• business, as to the ( ireiiit Courts, inehidinir the Trial of all Keeords ema- '• natinf( from the King's Ik'neh, whether ccmti.ining i'leadings of the present " or any |)reeedintj 'I'erni, and whether |)assed before or since the Departure " of the Chiel Justice." The latter Clause was inserted because a great Number of the Civil Cases on the Circuits are conducted to issue in Truiity Term, and the ({ecords are generally passed in the f()llowing Vacation, on the Kve of the Assizes, at which Courts, if a. Judge were to decline trying them, the most serious Inconvenience and Hxpence would accrue to some llinulreds of Persons. In answer, Mr. Justice Millis said, " That he should have nuich Pleasure in " af!()rding the utmost Kxplanation in his Power on the very im|)ortant Topics '• refl-rred to by tin Conncil, at as early a Period as the Magnitude of the " Knqiiiry should permit." The Urgency of tiie Case called (or a more certain and definite Reply ; and to remove all Doubt as to the true Object of the Hoard, another Note was addressed to .Mr. Willis, .stating " the Desire of the Council to receive an " explicit Declaration as to which, if any, of the Duties enumerated in the •• previous Comnumication he was prepared to discharge j and that the Public " Service required his early Answer." In reply, he said, " He felt legally, judicially, and religiously bound, by virtue " of Ins Oath ofOflice, to ileclare his Opinion, of the Kith Instant, in rescinding, " so far as he was concerned, an Order of ' -t he had joined in, and expressim'- " what he considered the Kesidt of his .its." That " all or every of the •' seve-al Duties permitted by the Leg, ■ Jiactments of this Prox ince to be " discharged by One Judge, or in conj with the Chief Justice, he should " always be ready to perform. That the pK . .,e Nature of those Duties, if ques- " tioned, he could only give an Opinion upon judicially when legally before '^ hnn.'^ And after citing the Case of .Ship Money, and quoting some Passages from a Note to Lord Coke's Commentary upon Littleton, on the Subject of the Kuig's consulting his Judges in Cases in which the Crown is materially interested, and of such Judges delivering extra-judicial Opinions, he submitted whether he could be legally requested to give anv such by the Executive Council ? addnig, that " whatever his private Wish niight be. Respect must be had to " his Oath, and the established and constitutional Law." The Coiinci' are quite at a Loss to conceive how Mr. Justice Willis could have niisundeii'ood their plain and obvious Meaning. No extra-judicial ()|)inion was soliciied. He was, in the first place, merely asked to explain a Passage in bis own Letter; and, to prevent any Misconception, the King's ISench Terms, the Chamber Miisiness, and the Circuit Courts, were separately enunier.ited : afterwards, when it was feared he had not comiirehended the Object of the Hoard, a more '■ e.vjiiicil Declaration was desired." Knowing as the Council did, that Mr. Justice Willis had, Three Weeks before it was pro- nounced, made a voluntary Communication of his Opinion to His Majesty's Secretary of State fbr the Colonies, and to Mr. Stephen, the Counsel for the Colonial Department, it was not unreasonable to expect that be would have been both prepared and willing to give them any Information on that Subject which the Public Service might require. And the Council cannot forbear contrasting the present Caution of Mr. Willis on this Head, not only with his previous voluntary Communications, but also with that Part of his Opinion which he represents to have been judicially uelivered on the Kith Instant, relative to Lcmr of Absence, and his Enquiries at the Council OHice. 'i'he Hoard have searched in \aiii fbr any Proof that this Subject was " judicially or " legally before him." ■' Without any satisfiictoiy Answer to their Enquiries, the Council are left to mteipretforthemselves the Opinion of Mr. Willis, a^ rcsjiecls his in.lividual Share of the Public Husine,. ; and, couiicctiiig it witii his tbrniul Protest and * Departure ( M Dfjxirtiiro Inmi tlu- ( oiiit. linv an (uiistiaiiuil In iiili'i. that, iiikI.'i his ( mi- struLiioii olllu' Law, lie caiindt, (Iiihiim- ihc AIim'iut hI iIic Chitt .lii>iicf, In cxpcc-ti'ii t'tU'ctnally to (liscliaim- the Dmios ot a Jmlije coiiiniissioiii'il fo I'lolil rlie Court oCKiiifi's nciicli in this I'loxincf. 'riiiissitiiati'd, ami ilccply impressed with the iiri|ieiative Necessity ofiminr- (liately siipplyiiifr an clHrient Court, in order to en-ure the duo and ref,M!ar Admi- nistration of'Jnstice in tiie Country, theCouncil, in the sincere Desire todiscliar^'u their Duty to His Majesty's(;overnment, to this Province, and to your Kxcellene\-, and relyinj,' upon the ultimate Sanction ( f His Majesty, (eel it a Dutv incnmi hent upon tiiem to recommend that Mr. Willis be forthwith rtiiioved from the Office of one of the Justices of His Majesty's Coiut of King's Hencli for the I'rovince of Upper C:anada, imtil His Majesty's I'leasure he known ; and lliat, in the meantime, the Vacancy tlierchy occasioned be supplied by a temporarv Appointment, in the Wisdom of your Kxcellencv. All which is most respectfully submitted. (Signed) .r. Hma, Presiiiing Councillor. (Signed) 1'. M. A true Copy. (Signed) Jii/i/i S)iuill. Scliediilc of Judicial Appointments in U| per Canada from \1\H to 1S'^«. INCl'lMlilCNTS. W. Duniner Powell W'" Osjroode Peter Russell W. Dutimcr I'oweli Peler Russell - Peter Russell Peter RusseH - Peter Russell I'cter Russell Peter Russell Peter RussmII - J. Elinsley Peter Russell Peter Rus>.ell - Peter Russell Pc'rr Russell - H Allcotk - li- Allcock 1' CochV.nne R' Thorpe Thomas .Scott W'" Campbell - ■ W'" Dunuicr Powell D'Arcy Boulton Levius P. Sherwood W-" Campbell Ja' U. M'A;il;..v John VVulpole"Willis OFFICE Datr of CdmmjNiiiM), Secrelarv's Ollice, 'JOth.Iiinc l.'^L'.S. Do. Do. Do. Do. Do, Do. Do. Do. Do. Do. Do. Do. First Judge of the Court of Common Pleas tor the District ol' Mebsc. The Cummissii n not r'eoriled in the Secre- tary's Office. Chief .Fustice - - . . . Third .Justice of the Court c I' C^omnion Pleas - .... Judge "f the Court of Kiiiji's Bench To be Puisne Judge for Dister Term (or Trinity Term - lor Michaelmas lor Hi'ary lor Earlier for Trinity - - i lor Michaelmas . I Chief Justice - - Puisne Judge tor the Term of Easter - I Do. for Michaelmas A Puisne Juilge - - . i A Puisne Judge - - . . | Justice of the Court of Kind's I'uneh - : Chief Justice - - . . Judge of the Court of Kin<,''s Bench Judge of the Court of King's Bench Chief Justice - - . . j Judge of the Court of King's Bench - j Chief Justice - - - - i Judge of the Court of King's Bench - | Judge of I he Court of King's Bench Chief Justice - - - Judge of the Court of King's Bench Judge of the Court of Kiu^'s Bench '2i> July I79'>. 27 June 179';. 9 July IT9t. 10 Nov. 17!M. l.i July ll'J'i. 26 OcJ. 17.'y,->. 13 Dec. I7.'h;. 7 April lluc. 7 June I79'i. ■_ Oct. 179(; 21 Xov. 17.W. 1'' April 1797. 5 !^cpt. 1797. 17 "sept. 179',. 17 .VJarch 1798. ;^0 Nov. I79S. 7 Oct. 1802. 2.i June 1803. 21. July If-o:. (J Aug. \h\)ii. J 8 Nov. 181 I. 1 Oct. 181(3. 12 Feb. 18I.S. 17 i"'cx. 18CJ. 17 Oct. 1825. 3 July 1 82"'. 2(! Sept. 18.'7. \- (Signed) A true ( opy. (^Signed) Saml'li, p. Jakvis, Deputy Secretary. Jnhn Sviall. ( 84 1 Iiirlosiiii', No. .n. Sir, York, irili.liino InJM. In obc'dicnco to tlic Commaiuls of liis Kxcclluncy tlie LioiiU'iiaiit (ioveinor I liiivc roiisidi'ii'd tin- scxcral (^iifslions rcfi'irod to me hy your Letter of this Day, to wliieli as early an Answer as |)ossil)le is required ; and 1 have perused Mr. Justice Willis's Paper transmitted with your Letter, and containinif a Ueijort of .Statements puhliely made hy him on the first Day of the present Term, whici have given Occasion to the Keferencc made to me hy his Kxcellency, The First Question is. Whether in the Ahsence of the Cliief Justice of the Court of King's Hench from this Province, that Court can he legally holden ? Our Court of King's Bench derives its ICxistence from the I'rovinaal .Statute of .'M. (Jeo. 8. C.2. Hy the First (Clause of that Statute it is enacted, " That " there be constituted and estahlisheil, anil there is thereby constituted and " estahlishcd, a Court o/' Law, to he called and known i>y the Name and Style " of His Majesty's Court of King's Bench for tiie Province of Upper Canada, •' which shall be a Court of Record of Original Jurisdiction ; and shall possess " all such Powers and Authorities as hy the Law of Lngiaiul are incident to a " Superior Court of Civil and Criminal Jurisdiction; and may and shall hold " Plea in all and all Manner of Actions, Causes, or Suits, as well Criminal as " Civil, Heal, Personal, and Mixed, arising, hapi)ening, or being within the «' said Province, and may and shall proceed in such Actions, Causes, or Suits, " by such Process and Course as shall tend, with Justice and Dispatch, to " deteimine the same ; and may and shall hear and determine ail Issups of " Law ; and shall also hear, and hy and with an Intjuest of good and lawful " Men determine, all Issues of Fact that may be joined in any such Action, " Cause, or Suit as aforesaid, and Judgment therein give, and Execution " thereof award, in i.s full and ample a Manner as can or may be done in His «' Majesty's Coint of King's Hench, Common Hench, or in Matters which " regard the King's Revenue by tiie Court of Kxchequer in England. " And tiiat His Majesty's Chief Justice in liiis Province, together with 'I'wo «' Puisne Justices, siiall preside in the said Court; which Court shall he «' holden in a Place certain, that is, in the City, 'J'own, or Place where the " Governor or Lieutenant (Jovernor shall usually reside; and until such Place «« be fixed the said Court shall be holden at the last Place of Mectin<>- of the " Legislative (Council and Assembly." The Three next succeeding Clauses are proper to be considered ; they are in the following W^ords : — " And in order that certain stated Times be fixed for the Sitting of the •« Court, be it enacted by tlie Authority afuiesaid, Tluu Four Penods of " Sessions or Terms be appointed in each' Year successively, to i) ^ known bv " the Names of Hilary, Easter, Trinity, and Michaelmas Term; thai the '« Hilary do connnence on the Third Nionday in January, and end on the «' Saturday of the ensuing Week ; that llaslei- Term do commence on " Monday next alter the Sixteenth Day of Ajjril, and end on the Saturday of " the ensuing Week ; that the Trinity Term do cummence on the Third " Monday in July, and end on the .Saturday of the ensuing Week ; and that '« the Michaelmas Term do commence on the first Monday in October, and " end on the Saturday next ensuing ; and that the first and last Days of " every Term, and every alternate Day from the first, not including Sunday, " be Return Days. « Provided always, and be it hereby further enacted, That when theCourtsIall " have good Reason to believe there will not be sufiicient Husiness to recpiire •• their daily Attendance throughout the Term, they may be at liberty to " adjourn the Court (m any Retiuii Day to the next innnedi'ate Return Day. " And be it further enacted by the Authority aforesaid, Th it all \\'rits to be " sued out of the said Court siiall i.,siie in the King's Nam.', and be tested " by the Chief, histicf, or in his Ahsence, hif the Senior Judge (J' the Court, ami " be returnable on some Return Day in Term Time ; and that not less tlian " Fifteen Days inclusive shall always intervene between tiie Teste and Return «' of the first Process that shall be directed to tiic Sheriff of the Home District, " or the District in which the Court shall be holden, and that not less than' '" Forty ( 85 ) " I'oH) Days inclusive siiali aKva\s inUTveiic between the Teste aiul Hctiim " of'liie first Process into every otiier District." The Commissions to tlic Jtiilges, who are a|)pointetl by Patent, issue to them intliviihially; and every Commission which I have seen, autliorizes and commands the Judjre wliom it appoints, " to iiold tlie Court of King's Hench at sucli •' Times and in sucii Places as the said Court may and ought by Law to be " liolden." I advert to the Terms of the Commission, not under any Impression that tliey can iiave an Operation repugnant to the Provisions of tlie .Statute, but because I think it material that tlie whole Case should be fully placed in View — and because, if the Words of the Statute are such as to leave it uncertain what the Legislature may have meant, wiiich, however, I do not conceive they are, then the Terms of the Commissions which the King has uniformly issued under the Statute, niay, I think, very fairly be regarded as of some Importance, and especially if they are found to be in direct Accordance with that Construction which may appej>r the most sensible. This Question having presented itself incidentally in answering a Reference made by the (Jovernment to the Solicitor General and myself some Mo. ths ago, we gave an Opinion n|)on it, which I beg now to advert to, as shewing the View taken by us of the proper Cemstruction of the Statute of .SI. Geo. 3. at u Time when no contrary Opinion had been advanced. It did not seem neces- sary tiien to enter minutely into the Question, because it arose indirectly ; and as all the Judges, in common with all the rest of M.mkind, had invariably given that Construction to the Statute which we adopted, its Correctness was rather assumed than attempted to be proved. I continue to be of the same Opinion. I tiiink that the Court of King's Bencli in this Province continues to exist, although the Chief Justice be dead or absent from the Province ; and that the remaining Judges or Judge of that Court can legally sit in Term, and hold the Court, although the Chief Justice be not present ; and I submit these Reasons for my Opinion : — 1st. Although it is an acknowledged Maxim of I.aw, " that a Statute ought " sometimes to have such Construction as is contrary to the Letter ; and " although a Thing which is within the Letter of the Statute is not within " tiie Statute unless it be within the Intention of the Makers," I do not con- sider it necessary, in this Case, to resort to these admitted Rules for the Con- struction of Acts of Parliament. Tiu iigal Operation of the Words on which the Question turns, exen considered without reference to the Nature of tiie Subject to whicii they are applied, and without reference to any other Part of the Statute, or to any subsequent Statute, is not in my Opinion at variance with the Construction which they have in\ariably received. " To preside" is, according to Dr. Johnson, " to be set over" — it is by other Compilers stated to mean the same Tiling as to " superintend, to manage." A President is defined to be " one placed with Authority over others;" " one at " the Head of others." The Word has no express Reference to the actual Presence of the Object. " Prwseiis" and •■ rnesidens" I take to be very dis- tinct in their Signification, as they are in their Derivation ; and the Latin Verb " pras'nko" is thus rendered, " to have the Management, Care, (iovcrnment, " or Charge of." When, theretbre, it is declared that " His Majesty's Chief " Justice of this Province, together with Two Puisne Justices, shall preside in " the said Court," — looking at no other Part of the Act, and setting aside every Aigument uh iucurneiiienti tliat must attend any <,tlier Construction, I understand it to be meant that the Court is to consist of Three Judges — that over the Officers of the Court, and over the Court generally, there shall preside a (.'hief Justice and Two Puisne Jutlges. I look u])on the Statute as a Warrant and Instruction for the A])pointment of so many and such Judges, not perhaps limiting the Number, so that more cannot be appointeil, (that need not now be discussed) ; but as providing for an Kstablishment of Judges to that Extent — an Mstablishment, like all others, subject to Casualties — and leaving it to be inferred from the remaining Provisions of the Act, or to bo settled by Prac- tice, or, more naturally and obviously, by the known Principles which govern the Proceedings of .similar Courts, whether the Presence of all,. )r of a Majority of the Judges thus appointeil " to preside," shall be necessary to the Per- ¥ fiirmance ( 80 ) f'oimanr«' (it niiy y\ct <>( tliu ('diiii, tn- wlictlifi Oiir ilonc, in tlie Ahsciici- ol otlu'is, is nut nt'Cfssarily invested with the Aiitiioiity of the Court. There is u " Court of Kind's Heiicli" — " a Court of liccurd of Ori^iitnl " Jiirisdirt'um" always rxistiiij^ in thu Province, although its Sittings arc con- fined to certain 'IVrnis. /// this Court, or over this Court, (for I .onsider tlie one Preposition so used to iiave tlie same Meaning as the other,) a Chief Justice and 'I'wo I'uisne Judges presiile — tiiat is, " u.sual/ij preside." It is not neces- sary, in my Opinion, that in the Hall in which they are to sit, they must all l)c present. No Clause of this or ol' any ntiier Statute enacts tfiat in Terms; every Argument of Inconvenience, and many Arguments ex absurdo, would ap|)ly against such a ( 'onstruction ; and there is accordingly, as I shall presently shew, clear enough Evidence to he found, in more than One of our Statutes, that the Legislature never intended it, hut that they certainly thought and meant otherwise. The Krror, as I conceive it, of such a Construction arises from the attaching to the Word " Court " no other Idea than that of a sub- .stantial visible Court, occupying its Hall or Apartment ; in considering the VVortl as used solely with reference to the " Court hehif; in actual Session." Hut I conceive that a Person is a Judge of the Coiut of King's Beuch, and ma\, with perli'ct Accuracy, he said to be a Judge " in the Court of Kinff'.s Ih'nrh" in this Province, while he is confined to his Room by Illness, or is absent from the Country on Leave ; and as much so as if he were on the IJench in the Discharge of his Duty. So a Man is said to be •• in the Privy Council" who may njver have been in the Council Chamber, or a Captain in a Regiment wiiicli he has never joined, or from which ho is absent on Leave. Both ordinary and legal Phraseology warrant tiiis Construction. With respect to Boards anil Bodies of various Kinds, numerous Instances might be produced of such an Api)licatiun of the Term. In legal Proceedings a Man is said to be " in Court" when he has been served with the Process of tlie Court, and is regarded as being " in Court" for the Pur|)ose of moving or being moved against — not that he has necessarily been, or that he must be, within the Walls of the Court while it is sitting, but he is in that Court which is created by the Act of Parliament — which is mani- fested by the Commission to the Judges, and by their Proceedings, and which does not die, and revive, as often as any individual Judge in it v.icatcs his Scat, and another is a})pointed. The Court exists by Commission, independently of any Building or Hall in which it discharges its Functions. A President of a Court or Council is the Person " ulio ])resid(-s in " such Court or Council. I think the Substantive is strictly reducible into the very Word* under Consideration. The Chief Justice " presides in" the Executive Council, ex o//icio, in the Absence of the Lieutenant Governor ; but thoug!i he may be absent, there is a Council, anl without the Person appointed to pri'-iile in it. T presides nevertheless in the Council, in my Understanding of the Term, at the very Moment that from his Illness or Absence the senior Member of the Board presiiles of Necessity at any particular Sitting. I submit, that if any Stranger should enter the Court of King's Bench during Term Time, and ask a By-stander " who presided in that Court ?" he might, consistently with the just and common Understanding of Words, be told that the Chief Justice of the Provuice presided in it, but that he was not tlien present. I conceive that a Person may preside in a Court without presiding in every Session of that Court. The Expression, " shall preside in the Court,'' is to be understood in the common Acceptation of the Words. It is not a legal or technical Phrase which has a certain known Meaning necessarily attached to it, and it is in its most ordinary Sense that the Legislature nmst be supposed lo have used it. If we give to Expressions of similar Import such a Construction as would make them refer onlv to the actual Sitting of the Court, and to take them in tl.at Sense strictly, we shall find that the most respectable Writers upon tl.e Constitution of the Courts in England misrepresent them, as in this Respect, subject to Restrictions and Conditions which they ccrtai.dy are not subject to. For instance, a Writer on the Court of King's Bench says, " the Judges: of the " Kin"-'s Bench are composed of the Lord Chief Justice of England and " Three Puisne Judges, all of 'cliom sit, in that Part of Westminster Hall a '• known ( »7 ) " known by the Name of tlif (unit of Kinj,'\ Hem li, I'veiv D.iv m tin I'oiii " 'I'tTiim." Now ii, is so notorious that all the Judges do ml sit eviri/ Dai/ in Term, (the inness and Alisi'iue of one or more of them fre(|iicntly preventing;.) that tlie Anthorcan l)ut hiive meant tiiat they may sit — that tiiey are " appointed to " sit," or, as our Statute has it, " to preside in the Court."' I eite this merely to shew £lie Sense in whieh sueh Languaf,'e is used. Mr. .Fustiee Hlaekslone uses preeisely the same Words in descril)in<: the Court of Common I'leas. It the Worik. " preside in the said Court," are not so fretiueiitly used in the Constitution of Courts, as the Kxpressiou "that the Court shall consist," or " he composed o(;" kv. I sliall he ahle, I think, to shew very satisllietorily that they were not used hy the Lejiislatine in order to jiroduce a ditfereiit Edeet ; and, in the meantime. I will add that 1 think their Inlroduetion is rationally accounted tiir, hy ohservin/,', that the Court lo/tsi.sts of other OHicers besides the Judges. The .Indies are (Jllieers of the Court ; so are tiie Sheritl's ; so are tile Clerks; so are various other IVrsons attacheil to it. These latter, however, do not preside in l/ie Coiiil. The Judges do ; and the Kxpression I in)derstand to have been ap|)lii-il to tiie Judges in that Sense, and without particular KetlTence to their actual Sitting in Tern), any ninre tlian to tiieir acting either collectively or singly in X'ac.ition. 1 will not insist further upon the Meaning to he imjuited to the Words abstractedly, though many other Arguments on that Point occur to me, because I leel that the Question has been set at rest, not iiurely by the con. ciirring Practice of all the Judges who have presideil in tiie Court, but by the declared Sense of the Legislature; and indeed I have only said tiius much on this Point, because I think it satistactoiy, in a Matter so important, to shew tliat the Construction invariably given to the Language of the Statute is not repug- nant to the Letter, but is strictly consistent with the common I'nderstaiuhng and fair Meaning of the Wortls 'hemselves. If we take a more comprehensive View of the Queslioii, J think it clear that the W^ords, " preside in the Court," are capable of no other Construction than I have given to them — when we consitler the X'tlnre of the Object to xiliieli l/ieij (in; applied, and when we look at ot/ier Clauses of tiie same Statute, and at other Slnlules c.ipressiij relating lo the Court, The Practice and Proceedings and the Powers of the Court are all similar to those of the King's Bench in Kngland. It is surely not consistent with the Nature of a Court, constituted with the Powers and for the I'urposes expressly assigned to this Court in the very Clause in wliicli »!ie Words occur, namely, for the "regular" as well as " the general Ailministration of Justice," that it should never be certain whether there will be a Court on any Return Day in Term, — never be certain that an Argument can be heard to ihe End, or a Cause tried even after it is begun. I have known, a tew Years :,go, a Trial at Har in I-jectment for a large Property in a remote District; tiie Sjiecial Jury were necessarily brought from that District ; the Trial lasted from an early Hour of one Day to Three o'Clock in the Morning of the next. If one of the Judges, overcome by the Exertion, had expired in a Fit upon the Bench — and the Kllect of such a Casualty had been to annihilate the Court, and so eflectually as to prevent even the Power of Ailjournnient, (for that is now exjiressly affirmed,) — then the Ju.ors must have been allowed to walk out of the Box, and separate to their Homes, and the Case must have ended in a general Dispersion, without Authority, of Parties, Judges, O.'fieers, and all. Again, by Law and the Practice of the Court, a Party complaining of an illegal Verdict has the first Four Days of the following Term in which to move : he unluckily, perhaps unavoidably, defers it to the last ; a Judge is ill on that Day, and cannot attend in his Place ; there is no Court, it is said, and he cannot move ; for it is impossible, if a ne"' Conuni;,sion were recpiired whenever a Judge is absent or ill, that it can always be completed and issued on the Instant: the next Day his Adversary enters up his Judgment before or after the Hour for the Meeting of the Court, and without eiKjuirirg whether the Judge was well or ill, or whether he would be or was absent or present on the Bench. He does his Act in the Office of the Court, which is always in existence. ,./i ( 8S ) I vxisteiicf, but in wliicli, \>y tlif uuy, no Hiisincss of any kind ought to be fninsacifd il'tliciL' is no longiT u Coiut. Aiiti intkcil I am at a l.os-. to understand how the ordinary Cliamber Husiin;ss of the .ludges could be lef,'ally transacted at a Time wlieii, liy the Absence «)l the Chief Justice, (adnntting flio Absence to have tliat KtK-ct,) tliere is no hniger ii Court — since, clearly it is only as a Judge of the Court of Kin{,''s Hench, and in that Court supposed to be always existiiif,', that any I'roceeding in u Cause can take place before him, either in Vacation or in Term. At this Moment there are, doubtless, in the several (i iols of this Province, Prisoners in custody for Debt upon Process of the Court of' King's Bench. It is utterly re|)ugnant to suppose that they can be held in custody under the Authority ot the C^ourt of King's Hench, and yet that, if from Defect or Irregularity in tiie Process, they are irregularly confined, there is, by reason of the Absence of One Judge, no Court which can grant them Kedress, and that even in a JVnn appointed by Law for (he Sitting of the Court. This would lead to the Absurdity, that Acts which, old o/'Court, One Judge in \acati()u can do, and nuist do, 'i'-av Judges cannot do /// Court. Again, it is a Priuci|)le that no Man can be a Judge in .lis own Case; and I can luudiy sup|)ose it will be thought that the Legislature, taking the English Courts evidently for their Model, intended absolutely to exclude fiom the Means of Redress, for the most ordinary as well as the greatest Injuries to Person or Property, all the Jiulgcs of our Court of King's Hench. A Judge, it has been deciiled, cannot legally form One of a Co'ut silting in Judgment iij)(>ii a Case in which he is a Party ; but then, if for that Reason he must withdraw, lie would, according to the Construction lately advanced, leave in this Province no Court capable of acting, and consequently must be without Remedy. If the Wonls of the Statute were (contrary to Reason, and, as I think, to their common Acceptation,) to be so construecl as to render inevitable a Dis- solution of the Court, or to disable it fiom sitting in Term, whenever Death or Absence diminished the Number of the Judges, then tiie Legislature will be found to have created many Absurdities by their Provisions, and then also it will be seen that the Judges must be incurring the Risk of producing Evil and Inconvenience by almost every Act done by them in Vacation. When an Insolvent Debtor is entitled to his Discharge iiom Custody by reason of Failure in i)aying him the weekly Allowance, it is directed by the Statute of l!S'2y, tliat he shall be discharged by the Court in Term Time, or by a Jii(/gc ill J'dciUion : it is clear then that a single Judge cannot discharge him during Term ; yet surely the Legislature can never be su})posed to have intended that t!ie Chief Justice and One Judge, or that Two Juilges should be unable, in a Term a})|)oiMted by Law for the regular Transaction of the Business of the Court, to ilo that, even in favour of the Liberty of the Subject, which One Judge may do in Vacation. Again, by a Provincial Statute passed in the Year 1797, a dilatory Plea may be argued before a Judge in J'acal/on, to prevent vexatious Delays ; but it would seem a strange Inconsistency if, from the Chief Justice being ill oi absent in^ the Term in whicli it is set down for Argument, as the Statute directs. Two Judges could not hear and determine it, and yet clearly their Right to sit as a Court for that Purpose must depend upon the same Con- struction as their Rigiit to sit for all other Pur|)oses. It seems quite clear that if we are to adopt the Conclusion, that there is not a Court of King's Bench capable of discharging its Functions in Term, there can be no legal Court of King's Bench existing in the Province ; for surely nothing could be more absurd and repugnant than to hold that a Court exists for the Purpose of enabling Judges to do Acts individually in their Chambers, which, if erroneous, could only be redressed in Term Time ; and yet, to deny that the same Judge associated with another Judge can in Term Time grant that Remedy, or do any other Act. One Judge in Vacation may, in case of Tort or unliquidated Damages, grant an Order to hold to Rail ; lie may chance to do this on an insufticient Affidavit ; but if, in tlie ensuing Term, the unavoid- able ( 89 ) itiilc Al)seiice ola sin^lo .liulm' iliiablo the Coiirl tioiii proii'oiliiij,', tlitTo is no Ofiportiiiiily of ri'lievmj; tlio I)efetiilutit from Ciistiuly. Tpoii wlial rrituipli- it is tliat tlie JikIi^'cs transact much of tlip Hiisiiit'S!* of tlie L'oiirt out ol"l'( iiu is very cirarly explaineil in tlio Case of Ilex i. Alinon, ill Liiril {"liitf ,fu>iuc' Wilmot's Arguments aiul Opuuoiis, wliioh contirms, in several Points, tlie X'iew I have taken »)f tlie Qui ! ion suhniittv I to inc. I'here would imieed lie no Kiicl to the Contradictions, le Ahsurdities, and Mischiefs, that we must be exposed to, if the flUli (ieo. ii. m to have any other Construe tion tlian tliat which has been aiw.nys hitherto fjiveii, and if is iiiineccssarv to at till inu; '1 I multiply Instances ; at tne same iime l am ready to admit that the force of Arfiumeiits drawn from Consccpiences has it., IJmit, and thai a Legislature might, ill its I''oily, use Terms wliii h would admit only of a Construction such as is contended fijr. What I mean to state is, that a Court would with extreme liictaiice adopt a Construction which must involve them in such Absiirdit i ., and would gladly and readily rescue themselves from it by finding in other Parts of the Statute, or in subsequent .Statutes, Expressions and IV(i\ isions which shew the Meaning of the Legislature to have been sensible utiil rational, thoiigii apparently repugnant to the Letter. Such Helps and Guides to the Coiisiruction are certainly at Wand in our Statute Hook. The Pro\ i-.ioii in the Mb Clause of the same Act can, in my Opinion, be reconciled with no other Construction than that hitherto acted upon. The Writs, by the Course and Practice of the Court, and u|)on every Principle which governs its Proceedings, bear Teste in Term. 'I'liey are sup- posed to be awarded liy the Court while sitting, and it is fiir that Reason they do bear Teste in 'IViin ; but the Itli Clause releried to exjiressly provides, that in the Absence of the Chief .Justice they shall be tested by'tlie .Senior Judge of the Court. This Provision, therefore, evidently siijipo'ses that the Court may be sitting in Term without a Chief Justice; and. in declaring how the Writs shall be tested, it has regard to that probable Occurrence, and guards ;igainst an Kxceptioi which might have lain if it had declared that the Writs should be tested l)y tlr Chief Justice. To have provided that the Names of all the Judges should be used, would have been iiicaiiveiiieut ; to have required that the Name of the Chief Justice should be used, when there might for a Time be none iii the Province, would have been leaving the Provision imperfect ; and the Act, therefore, |)nuleiitly provides, that where the Chief Justice's Name would b< used when there is a Chief Justice, that of tlie .Senior Puisne Judge may be useil when there is not. Hut it may and has been objected that the inserting this Provision shews that the Legislature intended to authorize this one Act, and this oh/// to be done ill the Absence of the Chief Justice. It would, liowever, serve to little Purpose to authorize a Writ to issue under Circumstances that would permit of no Proceeding 'beyond it. There can be no Chasm in legal Proceedings ; and if, when the Writ is made returnable, which the 4th Clause declares must be in Term Time, there should be no Court that could legally sit, the Proceedings must unavoidably be discontinued. Tlie Necessity for declaring liow the Writ should be tested here arose from the Fact, that in England the original Process emanates from Chancery ; the Similarity, therefore, intended to be established between the 'i'wo Courts failed in the fir^t Step, and it was fi^'lt to be necessary to provide expressly for theObject, this was done by declaring that the Writ should be tested in the Name of the Chief Justice, or, in /tis Absence, (and the Writ is necessarily tested in Term,) by the Senio'* Jucl.^e. Again, the 19th 'Jection of the same Provincial Statute, 31. Geo. 3., provides, that " upon all Issue., joined in the said Court, in any Suit or Action which " shall arise or be triable within the Home District, or in the District where •' the Court shall be lioldeu, the C/iic/' Justice, or, in his Absence, am/ other " Judge of the said Court, shall, as Justice of Nisi Prius tiir the .said District, " at their Discretion, either in Term Time or within Ten Days next after the " End of every Easter and Trinity Term respectively, try all manner of •' Issues joined in the said Court which ought to be tried by Inquest of the " said District, and that Commissions and Writs of Nisi Prius shall be for Z "that IMAGE EVALUATION TEST TARGET (MT-3) V ij. ^ m. A, 1.0 I.I 1.25 1 2.5 12.2 2:0 1.8 U ill 1.6 V] <^ ^ /] -c), ms>. c). ■ %y //, o 7 Photc^phic Sciences Corporation 33 WEST MAIN STREE' WEBSTER, N.Y. U5S0 (716) 872-4503 ;V 4". \ k :\ \ ^<^ ■^^■^ ^^ ' o ;\ ^.^^ ^Lk> %^ \^ ^"^^ ^1^ 1° M.^.. f^ & ^ ( !MJ ) " that Purpose from 'J'imc to Time awarded ; and it n]u\\ and may be lawful " for any Person or Persons upon reasonable Notice, as herein after set forti;, " given to the adverso Party, or their Attorney, to take and sue forth suci'i " Writs and Records of Nisi Prius as may be necessary for the Trial of such " Issues as aforesaid." Here, again, is evidently- contemplated the possible Occurrence of the Chief Justice being absent in 'lern. Time, and Provision is expre;jsly made for the Contingency. The 37 (jeo. 3. cap. (). jjrovides, tliat " all Commissions of Assize and Nisi Prius shall be issued alter the Terms of Hilary and Trinity respectively, and shall be tested on the last Day of each of those Terms ; antl the Chief Justice, or any other Judge of the said Court in his Absence, shall, as Judgesof Assize and Nisi Prius, issue his Precept to the Sherirt" of the said District, for the summoning of Jurors for the trying of all such Issues as may be joined in " the said Court, and arise and bt triable in the said District, as by Law he " is authorized to do, so that the same may be in no Instance holden seiner " than Eight Days f iom the End of Hilary and Trinity Terms respectively." Hoth the Language anil the Nature of th.is Provision appear to me to shew that the Legislature contemplated in this Statute also the possible Occurrence of the Absence of the Chief Justice in Term. The 43 Geo. 3. cap. 3. was passed for enabling the Ciovernment, in the early Settlement of this Province, to admit Persons by Licences to practice as Attornies who had not served a legal Apprenticeship. The Second Clause enacts, " that before any Person sliall apply to the Governor, Lieutenant " Governor, or Person administering the Goverinnent of this Province, for " such Licence us aforesaid, such Person shall apply to the Judges of His " Majesty's Court of King's Bench, and shall \^vom\■efrom that Court a Certi- •♦ ficate, under the Hand of the Chief Justice, or, in his Absence, of the Senior " Pui.ine Judge of tiic said Court, that such Court is satisfied of the Ability " and Fitness of the Party so applying to be admitted to practise as a Barrister " and Attorney in this Province." Though from the first Part of the Clause it may seem that the Examination of the Applicant may take jjlace before the Judges out of Court, it is from the Court of King's Bencii he is to receive his Certificate, and that Certificate obtained^/OMi the Court is to be under the Hand of the Cliief Justice, or, in his Absence, {ihixlh.Ahscncii from the Court,) of the Senior Puisne Judge. In the same Year (18()j) another Statute was passed, so perfectly declaratory of the Sense of the Legislature on the Point now in question, th.it I annex a Copy of it. It was passed for enabling iMarried Women to convey their Ileal Estates, and is carefiilly framed, keeping distinctly in View the different Courts through whose Intervention the Conveyance is to be perfected. Tho Third Clause evidently provides for the Probability that when the married Woman shall present herself to the Court sitting in Term, (as married Women for a similar Purpose present themselves in the Court of Common Pleas in England ) she may find the Chief Justice absent ; and renders sufficient in that C^ise tlie Certificate of the Senior Puisne Judge. For this Certificate a Fee is to be paid to the Clerk of the Crown, who only sits .n open Court in the Court of King's Bench m Term Time ; and yet it is maintained, that without a Chief Justice there can be no such (\)urt sitting, and that the other Two Judges have not even the Power of adjourning. The Legislature could scarcely have meant to direct Recourse to be had to a Court so constituted that it could not sit ; for it IS to be remembered that the Act does not authorize Txvo Judges in Term Time, or the Senior Juilge, to take the Examination, &c, but directs that the Married \\ oman is to appear " in open Court in the Court of King's Bench " and directs what shall be done if she finds the Court of King's Bench sitting in Term lime as an open Court without the Chief Justice. The .07 Geo. 3. cap. 9. enacts, " that when any Session of Oyer and " lermmer and Gaol Delivery for the Home District shall have been begun " to be holilen before the First Day of any Term, the si-'i Session shall con- " tmue to be holden, and the Business thereof finally concluded, notwith- |< stancung the sittmg of His Majesty's Court of King's Bench within the said " District; and that all Trials and Proceedings as well as Judgments had, at " such ( !»1 ) " Slid) Session continued to be lioKlen, shall be good and eftectual to all Intents " and Purposes as if the said Session of the Court of King's Bench had not " i)ccn.'* The Judgcsof the King's Bench in this Province are ail of them included in every C'omnnssiou of Oyer and Terminer, and are of the Quorum in the Com- missions. The Criminal Court in the Home District, therefore, .-lould not be sitting simultaneously with the King's IJench (which the Statute was meunt to provide for) without the Absence of some One Judge from the latter Court. I assume the reasonable Construction of the Act to be, that hutlt Courts were to be enabled to sit within the ordinary Business Hours of the Day. In 18'J3 an Act was passed in this Province to provide for the Publication of the Reports of the Decisions of the Court of King's Ht cli, and it enaci^ that the Reports taken by the Public Reporter shall, after Examination by the whole Court, be signed in open Court htj all llic Jia/ge.i prcicvt ; an I'Apression which, 1 think, clearly implies, that the Court may be openly silting as a Court without all the Judges being present ; and the M'ords •' :c/iolc Court," which precede, cannot consistently with this Expression mean any thing else than the " whole of the Court or of the Judges ;;/r.s'f«/." I think tlies3 References sufficient to shew what the Legislature intended, and that tliey leive little Room for Doubt, when it is considered on the other hand thai not one Provision in any one Statute can be adduced in'Contirmation of the Construction, that without a Chief Justice and Two Judges there can be no Court. Were the Law now so, a Necessity would exist for instant legislative Provisions for preventing a total Failure of Justice ; and had the Legislature intende.'. to use the Words in that Sense at the Time, or so ur.derstood them afterwards, they must have felt the Necessity of applying some Remedies for the Confusion which must inevitably occur. That they have not done so, nor have ever been moved to do so, is the strongest Evidence of the prevailing Sense of Mankind that no such Necessity exists. But the Legislature, though the best Expounders, are not the only Ex- pounders of their own Statutes; and perhaps there never was an Instance of the Sense in which the Legislature seems to have intended tiieir Act to be taken, being supported by a more constant and uniform Adherence to the same Construction by those appointed to carry h Act into VAYait. Lord Coke says, " great Regard ought, m construing a Statute, o be " paid to the Construction which the Sages of the Law, who lived at the Time " or soon after it was made, put upon it, i)ecause they were best able to " judge of the Intention of tiie Makers. It is moreover a Maxim that nm- " temporauea c\.j)ositio c.sfjurtissima in lege," It is a Fact very notorious, and even capable now of being legally proved, that the Act of 1791, in which is contained the Expression that " a Chief Justice and Two Puisne Judges shall preside " in the Court of King's Bencli, was framed by the late Mr. Osgoode, at that Time Chief Justice of this Pro- vince, and a Member of the Legislative Council, into which Branch of the Legislature he introduced the Bill. Mr. Osgoode was an English Barrister well known to Men of great Eminence at the Bar and on the Bench, and himself a Man of high professional Attainments ; of his j)rofound Knowledge of his Profession he had given Proof before he can.e to this Country. To him the Task was expressly committed by His Majesty's Government, of organizing the Judicature of this Province ; and not many Years before his Death, I believe, he was selected in England for a similar Public Servicij in (iuernsey or Jersey. He was the first to act under the Statute he had framed ; and during the Time he remained here, he never, us I believe, sat on the Bench together with Two Puisne Judges : I do not know what stronger Evidence could be given of the conternporanea expositio spoken of by Lord Coke as " fortissima in lege," — or who could better judge of the Intention of the '^ ' ikers of this Statute than Mr. Osgoode, who framed it an- assisted in pas> , it. After Mr. Osgoode's Time the Court was more frequently not lull than full > Casualties, against which it was impossible to provide, frequently occa- sioned m\ ( f'«' ) ;.' ! sioncd this . Mr. Elmslcy ami Mi. I'owell sat alone in Bank ; Mr. Scott and Mr. Thorpe; Mr. Scott and Mr. I'owull (or several Years, I think from 1807 to 1811; Mr. Powell and Mr. Campbell ; Mr. Campbell and Mr. ]}oulton ; Mr. Sherwood and Mr. Willis sat alone during the whole of he last Term; and from the Indisposition of one or other of the Judg-js it has frequently happened, even wher there were Three Judges in the Province, that on some Day in Term they could not all be present. It seems to me that this concurring Practice of all the Judges must be deemed, in :; Case of this Description, fully equivalent to an cxprrss Dec'a- ration of their Opinion ; for although, under a trite Maxim, it is held that some Errors or Irregularities are not cured by Usage, as they may have l.een passed in Silence and unobserved, it never can be supjjosed that the Court and Judges of the Court have been (or ever inattentive to the Provisions of the Statute which creates their Jurisdiction and under which they sit; and that they never reflected upon tlie Effect of a Removal of a Judge, by Death or otherwise, on the Constitution of the Court. Questions have been argued, and solemn Judgments have been given, in Cases in whicli a Chief Justice of the Court, or a Puisne Judge, was a Party on the Record, and therefore with- drew from the Bench ; and it cannot be assumed that the direct Illegality of such a Proceeding, (if they gave to the Statute the Construction alluded to,) could have escaped their 'Atterition. If the Construction unitbrmly given by the Judges of the Land to the Words of a Statute, even when that Construction is supported, as in the present Case, by the Reason of the Common Law, by the Necessity of the Case, and by the general Nature of the Provisions contained in the same Act, and in others relating to the same Object,— I say, if a Construction thus uniformly acted upon, and thus confirmed, is not to be considered as settled, but may be over- turned by any succeeding Judge, there is no longer Certainty or Safety in the Law. There are many Cases in which the Judges will be found to have held themselves ^rigidly bound by the Construction which their Predecessors have given to a Statute, and which has in consequence been acted upon tor a long Series of Years, even although such a Construction appeared not the most obvious; and, while adopting it as Law too firmly settled to be shaken, the most learned and venerable Judges have declared their Disapprobation of the Construction, anil their Inclination to have adhered to the Letter of the Statute, if the Question could now have been considered open. The Excep- tions which, contrary to the Letter of the Statute, are allowed to prevail against the Statute of Limitations, so as almost wholly to defeat it; the Con- structions of the Statutes of Frauds, which dispense with Production of Evidence in Writing, wlien the Words of the Statute require it ; and many other Cases of the same Kind, might be readily cited : even in Criminal Cases the Construction given by former Judges to positive Statutes is adopted and acted upon, though apparently at Variance with the express Words. It has been declared by very high Authority that the Footing on which the System of Conveyance by Lease and Release is maintained is exceedingly doubtful ; but, it is added very en.phatically, that the Courts would not now suffer a Question to be raised which would disturb a great Portion of the Landed Estates in the Kingdom. There can be no Question that if all those Proceedings have been invalid, which have taken place in the Court of King's Bench without the Presence of a Chief Justice and Two Judges, a very great Proportion of the Property in this Province, Real and Personal, has been illegally transferred, under Execu- tions upon void Judgments. An Infinity of Actions might be sustained for Acts done in accordance with the uniform Practice of the Court ; and a Scene of Confusion would ensue, of which the Extent cannot be foreseen. Serjeant Hawkins (book 1st, ch. 17. s. 39.) says, " that in doubtful Cases the " Reason of the Common Law ought to govern the Construction of the " Statute." The Power of construing a Statute (says Bacon in his Abridgment, title Statutes,) " is in the Judges., who have Authority over all Laws, and more " especially over Statutes, to mould them according to Reason and Conve- " nience, to the best and truest Use," &c. Plowden, IO9. Among ( 93 ) Among the Rules for construing Statutes, given by the best Authorities, it is laid down, " that the most natural and genuine Way of construing a Statute «' is, to construe one Pari hij another Part of the sam.; Statute, for this best " expresseth the Meaning of the Makers." <• Such a Construction ought to be put on a Statute as may best answer the «' Intention which the Makers had in view ; for " qui lutret in literd fiaret •' in cortice." 1 1 Reports, 73. Plowdcn, 57. " Every Statute ought to be construed for the preventin^r Delay as much as " possible." The Act professes to create a Court for the " regular Administration " of Justice. — It dots in Terms create one a* similar to the Court of King's Bench as Circumstances will permit, and evidently intended to resemble it in Principle and Practice. I think neither the Words of the Statute nor the Reason of the Common Law favour the Construction recently advanced, but that 1- h are entirely consistent with the Manner in which the Statute has been ever acted upon. Other Provisions of the same Statute, and other Statutes in pari materia, require clearly the former Construction ; and tbe unvarying Usage of the Court, comnrchending the Practice of Mr. Justice Willis, no less than of every prei.^Wng Judge, I consider to have put the Question beyond the Reach of Doubt. Since the Opinion of Mr. Justice Willis, publicly announced, and reduced to Writmg, has been submitted to me, I will consider what appears in it to ciitbrce the Necessity of departing from the former Construction of the Statute. As to the Inconvenience of the Want of a casting Voice, and the marked Stress laid upon a Reason given for a former Number of Judges in the King's Bench in England, namely, the Benefit of a casting Voice in case of Difference of Opinion, it is to be observed, that in the Common Law Courts in' England they have long preserved, and at this Day preserve, an even Number of Judges ; that they are not unfrequently divided in Opinion ; and that even when Five or Nine Judges presided, the Illness, or Absence from other Cause, of One Judge, left the Court exposed to this Inconvenience, but was no Argument against the Existence of the Court ; and it can hardly escape Attention that when in later Times a Fifth Judge has been sometimes appointed " in consequence of the Indisposition of One of the Four," as has been mentioned, such Appointment must have had the very Effect of giving the Number deprecated. With respect to any Argument drawn from the Writ of " Si non omnes," which accompanies the Circuit Commissions, it is to be observed, that to assume that every Provision in an .let of Parliament, or pvery Commission or Writ, or Clause in a Commission or Writ, is of absolute Necessity, is a veiy unsafe Principle to argue upon ; since, from great Caution many Things are done to prevent Questions arising, which, if they had arisen, would probably not have resulted in a Decision that such Precaution was necessary. But on reference to the 13 Ed. 1. ch.30. it will, I think, be -een very cleaily, that no Argument can be drawn from it. That Statute provides, that " Two Justices should be «* assigned, before whom, and no other, Assizes, i^c. shall be taken ; and they shall " associate unto them One or Two of the discreetest Knights, and shall take «« the aforesaid Assizes." They are appointed pro hac vice, and have Autho- rity to do a particular Act. They do not, like the Court of King's Bench, form a Court which it is necessary should be always in existence. No perpetual Jurisdiction is constituted ; no Court with a distinct Name, and various Functions ; but it is merely provided that certain Persons may be assigned to do certain Acts. It is pretty clear, however, that independently of this obvious Distinction, no very satis4ctory Argument can be drawn from the present Usage of issuing Writs of Si non omnes; since we are told that they wefe not generally used 'till 1722, more than Four hundred Years after the Statute of Edw. 1. was passed, which is assumed to render such Writs necessary. That whatever was done in the meantime was void for Want of them, will not probably be contended. A a With I'- ■ I ( wi' ) Witli respect to tlie 18 Eliz. cli. 18., and liJOeo. 1., amending it, from wliicli it is inferred that, without a corresponding Amendment of our Act, tlie Presence of all tlie Judges cannot be dispensed with, it is only necessary, 1 think, to read the Statutes, to be convinced that there is no Resemblance in the Two Cases, By the Statute of Eli/abelh, tiie Chief Justice of the King's Hench, the Chief Justice of the Common Pleas, and the Chief Baron of the Exchequer, are empowered at a certain Time and Place to fry Issues proceeding from their respective Courts ; and it is provided in as many Words, that " in case am/ one " of them be absent, Tuv Justices of the same Court may discharge tlie same " IJuty." Here, also, no continuing Court or Jurisdiction is created ; but certain Individuals liave Power to do a specific Act. In the same Manner summary Jurisdiction is, under many Penal Statutes, committed in certain Cases to Two Magistrates ; it never was conceived that One Justice could execute the Power in these Cases ; nor if the Statute had enacted, that all the Judges sitting together " might arrest a Judgment," or that the " Chief " Justice and One Judge might grait a new Trial," would it ever have been conceived that tlies;- specific Acts could have been done in any other Manner. With respect to the Sentiments ascribed to Sir Charles Wetherall in a Debate in Parliament, I know not what Argument can be built upon them, unless we are to suppose, which I do not, that he intended to be so literally taken as that we should conceive him to maintain that no Judgment ought to be given in the King's Bench unless in the Presence of the Chief Justice. He spoke evidently of the Chief Justice's liequent Detention by other Duties ; and could hardly affirm, that if tlie Chief Justice were dead, or ill, or inevitably absent, it would be expedient that the whole Business of the Court should stop, rather than the remaining Majority of tlie Judges should proceed. With respect to the Localitij of the Court, although much is said upon it, no Conclusion is expressed ; but I presume it was not adverted to unless for some Purpose. The Statutes cited as creating parallel Cases, certainly, in my Opinion, have a very distant and unimportant Bearing uj^on t(" Question ; they are absolute and unqualified in their Provisions. Our S' te of 17!)t is altogether in difterent Terms. When that Statute was passed, Newark was the Seat of the Provincial (lovern- ment, but it was in Contemplation to appoint another Place : — that has since been formally done. If " any Place can be said to be fixed upon" as the usual Place of llesidence iov the Governor, it is certainly the " Town of York," in which the Court has been holden, I believe, since the Year I797 ; at least I venture to say no Act of Government or the Legislature can be produced "fding upon any other Place." If wo Place has been fxed upon, then, by the very Terms of the Statute, the Court must be holden at the last Place of the Meeting of the Legislature, which York imdoubtedly is, anil has been for these Thirty Years ; but besides that the Statute of 1794 makes this Provision, there are several Legislative Enactments recognizing the Home District as tiiat in which the Court of King's Bench is holden. With regard to the supposed Cases of Hardship occurring in this Province, from the Circumstance that Appeals are limited to Cases in which the Matter in controversy shall exceed £ 100, I cannot avoid remarking, that the Hardship is not correctly illustrated by reference to Cases of " erroneous or imperfect Verdicts at Nisi Prius, with which one of the " Judges or one of the Parties may be satisfied, tiiough others may not be." The Remedy of a new Trial lies strictly and exclusively in the Breast of the Court from whence the Issue proceeded ; and if in England the Court should be equally divided upon such an Application, as they not unfrequently have been, the Parties would be precisely in the same Situation as in this Country, and a Writ of Error would give no Aid. Other Cases may indeed occur in which Diversity of Opinior upon Matters assignable lor Error might produce Inconveniencies here, for which we have not a suitable Remedy. In England, the Judges sometimes, when they differ in Opinion, concur Ibrmally in their Judgment, in order that one Party may (if the Matter be such that Error can be assigned) bring his Writ of Error, and apply to a higher Court. It is true that here, unless the Case amounted to i- .^noo ^ ( y5 ) j?100 ill Value, or aft'ected 3ome continuing Higlit, i..i., no Appeal would iio from such Juilgment ; but if that be an Evil, it rests with the lAgislature to remedy it, by constituting a Court of Error to revise the legal Judgments of the Court of King's Bench in all Cases ; and another Remedy would be found, to a groat Extent, in that earnest and studious Desire in the Judges to reconcile their Oiiinions, and arrive, from Ccmviction, at tlio same Con- clusion, which is so admirably -ussigned by Lord Mansfield as the Reason of that Unanimity of Juiigment that was for so many Years exhibited in the Court of King's Hciich. I cimnot conceive that an Inccmvenienee of this Kind sometimes occurring is, cither in Law or in Reason, an Argument for so construing tlie Statute of 179K as to occasion every now and then a Discontinuance of ail Uic Proceedings in the Court, and to produce a total Failure of Justice. The Statutes of :.n YAw.S. c. \1. and r/ Eliz. c. 8. seem to be much re'ied on ' ' in ; but I confess they appear to me, for the Reasons I luive stated, to be vhoUy inapplicable, and very clearly so. The first Statute gives a Power to :ertain Officers named, taking to them the Justices, &c., " to examine neous Judgments given in the Exchequer." Here again there is cou- d no Coiut of Original Ju;i diction, afibrding the only Redress for the irdinary Wrongs, and the only Means of Decision in most of the Cases ed between Party and Party ; a Court which, from its Nature, unist be wl: certain Otticers named, takmg " erroneous Judgments given in the Exchequer." stitutcd most on litigated between Party and Party . always in existence and always in operation. Certain Officers have Power to tlo a certain Act in a certain Manner ; such a Provision is, in Principle, not unlike the Enactment which gives Power to an Officer of Customs, taking ■with him a Peace Officer, to enter a House in the Day-time, and search for uncustomed Goods. If the Officer, affecting to proceed under tliis Statute, should go without a Peace Officer, and in the Night-time instead of the Day, he would be acting in violation of the Statute, and not in accordance with it. The Distinction in my Opinion is, that by the Statute of ^1 Edw. y. c. 12. the Direction of Parliament, the operative Words of the Statute are applied to the Manner in which a specific Power shall be exercised by Individuals to whom it is committed. By our Statute of 171H a Court of Record of Original Jurisdiction is constituted, which is required to be in constant Exercise ; and although a Chief Justice and Two Judges are appointed to preside in that Court, that is, are assigned to it, it docs not therefore follow that, spite of Death and Casualty of all Kinds, sue!) a Number of Judges must be always together when the Court is acting. To me the Distinction appears obvious and reasonable. The Statute of 18 Eliz. c. 8., besides that the above Remarks apply to it, seems to me rather to afford an Argument against the Purpose tor whicii it is cited ; for there Parliament seems to have felt it necessary, after reposing the Power of amending Errors in .iiany collectively, to add the Restriction that Sis at the least should exercise it. The Statute 3 Hen.?, c. 1. is so strictly framed, as really to bear no Point of Comparison .vitii our Statute. Its Language admits but of One Construc- tion ; and no more Doubt can exist upon it than upon the Power of trying a Cause or a Prisoner without the Presence of any of the Commissioners who are expressly assigned to be ol the Quorum upon such Trial. The same may be said of the .Statutes 31 Eliz. and l(i Car. 2. and '20 Car. 2., which have been cited. It is but necessary to read and com{)are them with the Statute under Discussion, and the Difference, which appears to me decisive, will present itself at once. The same may be said of he Instance referred to of Bankrupt Commissions, which it is declared by Statute shall not be executed in the Coimtry, unless he who is called the Quorum Commissioner be a Barrister. It would not endanger the Existence of the Court of King's Bench to admit here, that if the Statute of 1191 had contained a Clause declaring that no Judgment should be given unless the Chief Justice were present, or unless one of the Judges were an English Barrister, such Provision would be strictly binding. The Statute of Lower Canada, 34 Geo. 3. c. (J., which has also been reierred to in support of the same Train of Argument, stands on the very same Footing. I have read it ; its Language admits o\' but One Construction. A similar ( 9G ) I similar Provision in our early Statutes, respecting the holding the Sittings in this District, though in Terms much less particular, was conceived to require the same Construction, or, at least, to occasion Doubt ; and it was accordingly altered by the late Act. Ujwn our Statute of 1794 I have already remarked, except in relation to that Part of it which provides that the Chief Justice shall join in the Appointment of Commissioners to take Bail, &c. Many Appointments in the King's Bench in England rest exclusively with the Ciiief Justice ; and whether the Legislature meant to respect any Right of Patronage, or to provide for discreet Appoint- ments, does not appear ; but I do not see what can be inferred as to the general Power or Constitution of the Court from this Provision for a purely ministerial Act ; an Act which may be clearly performed out of Court, aiiil at any Time, as well in Sickness as in Health; which may, in the Absence of the Chief Justice, be deferred for a Time without fatal Injury to Parties ; and which certainly is not of that consequence, as comparedf with Acts which a single Judge out of Court constantly and necessarily performs, that any Inference can be drawn from it of the Desire of the Legislature to ensure the Concurrence of the Chief Justice in the general Business of the Court. The Im-ierial Statute 3 Geo. 4. c.C9., referred to, is precisely the same in Principle with the .llEdw. 3. c. 12., on which I have already remarked, and very distinguishable in its Terms from the 45th Section of our Statute 2 Geo. k, to which it is compared. The former says, that certain Persons, together with certain other Persons, shall do a particular Act ; the latter says, " the Court " shall do a similar Act. What constitutes or may constitute that Court, involves the whole Question. I imagine there can be no Ground for assuming that the present or former Judges of the Court have failed to consider the Terms of the Statute under which they have acted, or to acquaint themselves with the Distinction between Prescriptive Courts and Courts constituted by Statute. On the latter Point I would remark, that certain Maxims which pervade our Books do not seem to me to have been correctly applied. It is true that new and inferior Courts, created by Statute, are strictly limited by the Powers given to them by the Statute, both as to the Extent and Mani;er of proceed- ing. Such Jurisdictions are generally in derogation of the Common Law; and it is for the Protection of the Subject that the Laws creating them are strictly construed. But the Court whose Powers are in question has an unlimited Jurisdiction. It is modelled after a slmihr Commofi Law Court in England, and is to proceed in the same Manner. Its Authority, and the constant Disc' ^rge of its Duty, is of absolute Necessity to the Protection of Person and Property. It is created expressly " for the general and regular Administration of Justice " throughout the Province;" and it is my Opinion that, in support of sucha Juris- diction, those Rules for the Construction of Statutes are rather to be applied, which declare that a Statute shall be so construed " ut Res magis valeat quam " pereat ;" that in the Construction of Statutes, " the Ends contemplated are to " be considered; and that for Necessity, that there be not a Failure of Justice, " a Statute shall be expounded even contrary to the Words." Having expressed my own Opinion on the Question, perhaps at unnecessary Length, I should have forborne any Examination of the Arguments publicly adduced by Mr. Justice Willis, if, after the Paper containing them had been referred to me, I could have omitted all Notice of it without an Appearance of intentional Disrespect. I disclaim all Desire to examine them critically, or in the Spirit of Controversy ; and indeed I must say, in Conclusion, that for any other Reason than I have just mentioned, it was not, in my Opinion, neces- sary to have adverted to those Arguments at all. If, indeed, neither in the Act of 1794, nor in other Acts, the Legislature had so explained their Inten- tion as to give a reasonable and consistent Meaning to the Words " preside " in the Court," and if the Question were now raised as a new Question upon the first Vacancy occurring, then such Arguments would naturally present themselves ; and though I do not think they would lead me to th ,• same Con- clusion, they would require to be met. But I repeat that the Question has, in my Opinion, long been set at rest both by the Legislature and by the Judges who are to expound the Acts. The i ( 97 / The Secoiul (Question leJeneil to nie i>, whetliei' the .Appoiiitim-nis of such Civil Officers of tliis Colony as have heeii absent froisi the I'roviiiee, without Leave of the (ioxcriior and Council, are at this Moment absolutely voiil ami of none Kftect, as has been pronounced from tiie Itench. Upon this Matter I must remark, that if the Oneration of the SUitutcs had been rightly stated, which I think it has not, still the Forfeiture is one to be pursued i)y the Crown, and to be judicially declared, in each individual Case, upon a pro])er lej,Ml Trocceding, in which the iacts shall have been found as the Law requires, and the .Fudgment of the Court properly given, after an Opportunity being afibrcled to the Parties interested ot discussing the Question in the usual Manner. To have fouiul the Facts, arul pronoimccil Judgment upon them, before any Exception Itad been raised on the one Hand, or any Person called to answer on the other, 1 cannot but think wa . nnich out of the Course of the Adminis- tration of Justice ; and was not, I think, well sustained by the Precedent, reported from a Newspaper, of similar Remarks made in a Debate in the Assembly of Piince Edward Islam!. But however much iuilividuals may be entitled to complain that a su|)posed Forfeiture of tlieir Offices is communicated to the Public from the IJench, not in any judicial Proceeding, but as mere Matter of important Information, aiul the Facts in support of the Forfeiture vouched for by the Judge, as ha\ing been ascertained by his personal Enquiry, it is ceitain that the Question cannot be affected by the Manner of bringing it into Discussion. It is therefore necessary to consider it closely. I have done so ; and am of Opinion, that, supposing Mr. Justice ^Vi!lls's Information to be correct, it is obvious that the Consequence deduced from it by no means follows. The '2'2 Geo. y. c. 75. was eviilently passed to remedy the single Grievance which it recites ; namely, the granting Patents in England for OfUces in the Colonies to P sons resident and intending to reside in Great Lritain. That was an Incon\enience both to the local Governments and to the People of the Colonies ; and the Intention of Parliament was to place a Remedy in the Power of the Governor and Council. Tim Statute to that end enabled the Governor and Council to do what certainly, before the Statute, was beyond their Competence ; that is, to remove Officers appointed in England by Patent, who were not resident within the Jurisdiction of the local Government, and who probably held tlieir Offices for Life. It is scarcely necessary to enquire whether the Words used in the enacting Clauses are not more extensive in their Signification than was necessary for j)reventing tiie Mischief recited, and whether they are or arc not to be con- trolled by the Preamble, and construed with reference to it. The Fact is, that Offices in this Colony, and in the Colonies generally, are granted during Pleasure, as the 4tli Section of that Statute contemplates tliey may be. Such Officers are removable at Pleasure ; and with respect to them, the Aid of this Statute is not wanted, nor were its Provisions meant to extend to them ; but admitting that they do, then it does bui follow that, " any Officer who may have " been wilfully absent without reasonable Cause, to be alloued ly the Governor •' and Council, is subject to be removed by the Governor and Council." The Absence must be a mlj'ul Absence ; the Governor and Council have a Discretion in judging of the Cause that may be adduced by the Party, when he is brought by them to answer ; and they have, besides, a Discretion in pro- ceeding against the Officer, or not, according to their View of the Case : there is, moreover, an Appeal provided to the King in Coimcil. It is the 54 Geo. 3. c. GL which is chiefly relied on by Mr. Justice Willis for convincing the Public that the Chief Justice of the same Court, with himself, and mjiny other Officers of the Civil Government in this Colony, have forfeited their Offices. Whether that Statute was intended only to apply to Appointments made in England by Patent or otherwise, or whether it extends to all Appoint- ments to Offices i:i the Colonies, however made, it is not very material to enquire. The Intention of the Act in other Respects, and its legal Construction, appear to me to admit of no Question ; and the Manner in which it has been constantly B b understood i I! '^m I ii I iiikI('i>>I()(hI and tictcil upon liy I lis Majesty's SeoretniivA iif State tor the rolonie» is pcrH'ctly \\v\l known. It Clin si'irttly l)c niiule ii Question on this Occasion, \v!iat is understood in Law hy the Wonl " Ursideinr ;" for I conceive it to 'oe well establislieil, that a IlousehoMcr in any Town or I'lace is held to be a Kesident of that Town or I'hice if he retains liis Domicile there, or leaves his Family or Goods, for a 'lime •' aiiimo rcxcrtciidi." This has been ailjuil}?eil even in (!riminal Cases, re(iuiring, from their Nature, a very strict Construction. When therefore Parliament, by the First Clause of this Act, re(|uires that Commissions to OHIcers in the Coloines shall, in Terms, recjuire their licsidcna: in the Colony, the U'ord Residence must be looked upon as used vvitli u View to its legal, and inileed I may say its ordinary Construction, for such I conceive to be the Interpretation above given ; but besides that it would, in my Opinion, be repugnant to this Construction, to hold that a Civil Officer absent with Leave can be said to have forfeited his Ollice by Non-residence. It is against the express Provision of the Statute to maintain that the actual being in the Colony at all Times, and ilischarging the Duty always in Pcison, are indispensable Conditions to the Tenure of the Ollice, and that neither Illness nor temporary Absence with Leave ,an be accepted as an E.xciise. The very next Clause of the Statute (the Second) relates to '^Absence on Leave ;" and there can remain, therefore, only the single Question, what Leave shall be sufficient? — whether the Leave of the (iovernor will do, or whether it must be the Leave of the Governor and Council. The Opinion that has been advanced is, that nothing but the Leave of the Governor p.nd Council wili suffice ; and that the Offices of those Persons wiio have been absent witiiout tliat Leave are at thi.i Moment absolutely null anil void. That the latter Consequence would not follow, except as the Result of a proper and well-known legal Proceeding, I have already stated. The Facts nuist be found by u .lury ; and the legal Consequence of tho.ie Facts is to be judicially pronounced by a Court, not extra-judicial ly declared, for the Information of the Public, and in prejudice of the Officer whose Rights arc to be afTected. Hut it seems to me very clear that there is no Ground of Forfeiture ; if there is, it is certain that not only the Government of this Country, but His Majesty's Government in England, have been ignorant of the Intention of the Statute ever since its passing, for they certainly have constantly given to it a Construc- tion very different from that contended for, and which I think much more consistent with the Sense and Language of the Statutes. The 3d Clause of the ^'2 Geo. 3. c. 75. is the only Clause of that Statute which has any Reference to Leave of Absence to be obtained by the Officer; and that is, in my Opinion, intended to give to the Colonial Governments a Right thut either did not exist or was not exercised before ; namely, the Right of allowing Officers appointed in Great Britain by Patent, and who were not resident within the Limits of the Colonial Govennnent, to remain absent from the Colony, and that for an unlimited Time. There is nothing in that Statute to take away the Right of the Lieutenant Governor, as representing His Majesty, to exercise, within the Limits of his Government, the ordinary Prerogative of granting to a Colonial Officer, resident in a Colony, a temporary Leave of Absence ; neither is there any thing in the 5Kieo. 3. c. 61 abolishing that Prerogative, which, with respect to resident Officers, must always have existed, antl which it was not the Intention of the iJ'JCjeo. 3. c.V'S. either to confer or restrain. On the contrary, the Object of the last-mentioned Statute was to protect the Colonies against an Abuse which was practised in England, but of which the Colonies felt the Efltect. It seemed to have occurred, that the Provision of the First Clause of that Statute^ if carried literally into Effect in all Cases, might produce Instances of Injus- tice and Hardship ; and a discretionary Power of affording Indulgence was therefbii; vested in tlic Colonial Authorities, because the Knowledge which nuist exist there of the Exigencies of the Public Service would enable them more judiciously to exercise it. But I cannot conceive, and I know that it has not been considered by the Secretary of State in England, and certainly not by Mr. Goulburn, who framed and introduced the Act of 54 Geo. 3., that it was intended to interfere with the Rights which before existed, of granting a 6 temporary ""If^ CTILt- "Tf ( 99 ) temporary Lefwp lo re<*iilei)t ()Hi(trs, whose AppointiTients placei! them, at all 'I'imes, completely iiiiiler the C'oiitroiil ol the local (iovernnieiit. The Second Clause of the Statute >ii Geo. J. c. til. is iiuleed ho expressed UH to shew that in tiie Mini! ( •' the Makers of it it was not ulways necessary that Leave hIioiiM he graiiteil hy the (ioveriior and (oiiiicil ; in tiie Second Clause the Kxpressiou (Jovernor or Conned occurs ; and in the Third Clause it is expressly provided, that the Ciovernor shall report to the Secretary ol State all such Leaves of Ah-.ence as have heen uranteil "hi/ him." But it is next to he considered wilii what iJe^'ree of Reason it can be stated that OfHcss in this Colony have been forfeited uiuler the Provisions of this Act. It is truly saiil, in the Statement made from the Hench, thiU penal Statutes are to be construed slr'nllj/ ; but the iMaxim is not tobea|)plied in the Manner in which it seemed to be iiiteniled. A penal Statute is to be construed strictly, to the end that no iVrson may be punished (()r the new Offence created by it, unless he comes plaiidy within the Letter ; l)ut it is not to be construed strictlj/, or, as it were, .stfirri'/i/, a^ainut tiie iVrson charged, so as to pimisli him by C!on- struction and Implication, when lie does not come within the express Provision, in applying tiiis Rule, 1 consider, that under the Second Clause oi 5\ CJeo. S. c.fiL (which is the only Clause in cither Statute declaring that an OUice shal' be void) there can be n-) Forfeiture, unless, yir.v/, th OtKcer has gone from England xcilh t\vi Leave of the (Jovernor rt«r/ Council ; and, sccoiuU ' ' is t!' Secretary of State in Kugland has refused to contirm that Leave : ', unless theOPicer, notwithstanding Mich Refusal, has neglected tc .• i Otlice within the Time limited. If Mr. Justice Willis has obtained accurate Information at th» f^ it seems that no Officer has ever gone from the Province ttV/Asuch with the Leave of the (Jovernor only ; then, clearly, this (JLuse c. . to such Officers ; and if it diil, the next Step to be jiroved is, that tlie S<, of State has not confirmed the Leave; an(' I am at a Loss to understand n^js. this Provision can be lirought to bear upon those whose Leaves, whether granted regularly or irregularly, tiie Secretary of State has not only coniirmed, but, perhaps, by jiositive Ordf extended, and that too (I speak of my own Case) for a Period which the Officer felt to be exceedingly inconvenient. Again, how can it apply to Officers whose Leave oi Absence was merely for a short Period, to enable them to go to the adjoining Colony, or to the United States of America; and which Leave must have expired, and the Officer must have returned to his Duty, long before the Secretary of State could fiave received any Report of his Absence? I venture to affirm, that, taking the Statute 5 iGeo.y. according to its Language, and according to the Sense in which it has been uniformly acted upon here by successive Governors, and by the Secretary of State in England, no Office in this Colony could be found to be forfeited, even if the Crown were to institute the proper legal Proceeding. The Statute ^'i Geo. 3, was evidently passed altogether diverso intuitu ; and at any rate it creates no absolute Forfeiture, but gives a Power to remove, v/Iiicfi has not been exercised, and for the Exercise of which I imagine tlie (ioverii- ment is well aware there exists no Pretence, unless an Officer can be said to have been " wiljiillj/" absent from his Office, who had the official Leave of the King's Representative, confirmed by the Secretary of State. 1 have the Honour to be. Sir, &c. &c. &c. Major Hillier, Esq, John B. Robinson, Attorney General. -i|.' iii w) Inelosure, No. -t. Opinion of the Solicitor General in respect to giving Leave of Absence to any Officer. Sir, Solicitor Gerieriil's Office, York, 25th June 1828. I HAVE perused the Statutes of the 22d and i54th Years of His late Majesty's Reign, respecting the Grant of Offices in the Colonies, upon the Operation whereof, in respect to the giving Leave of Absence to any Officer, I I ( 100 ) my Opinion is ri<|iiiii'(l by Ins I:n( illi'iic) ilu' l.ii'iitcnant (iovernnr. The Fust C'laiisf oft lie 'JJ (iio. ,j. f.^/j. nsHuins tlii^ Appoint int'iit to any Ollices in th'.' Colonits \)\ i'aitnt, wliitli I appielioiul nii'uns I'atent nntler tin- (Jrcat Mial of Iji^laiul, to sncli i'crsonH only as sli ill iliscli,ii(,'o tlu- Duty thereof in IVrson. The Second ( laiisc proviilis (or tiu; Amotion oC any Odii'or from such Office, that is an Office umler the (Jicat Seal of Knf^lanii, who shall he wilfully ah-ent lioni the ( olouy without a lea.souable (^anse, to be allowed of by tlio (jo> eriioi- and Canned. The 'Jhird < lanse anthori/es the (Joveriior ond Council to give Leave of Ab- Kcnce to s;.'.!i Officer, and to provide for the ilue Discharge ot the Duties of such Office, iMitil tlie King's I'leasiue shall li > known. Al! those Provisions evidently 'elate to Officers appointed by Coir ssion under the (ireat Seal of Kngland, itnd not to ( )fficers ap,)()iMted 'in the Colonies. Hut supposing, for the sake of Argiunent, llmt they do apply to Officers appointed by Commission under the CJieat Seal of the Colony, how is such Officj to he forfeited? Not ipso Jacti) by departing from the Colony without Leave .■;:'" Absence by the (Jovernor and Council, but hy a Decision or .Judgment of the Governor and Council upon the wlu'le of the Conduct of such Officer; and they are to determine whether he had a reasonable (^ausc lor such Absence; and if the Officer is (hssatisHed with sucli Determination, he m.iy appeal to the King in Council. Tins shews clearly that the mere Circumstance of his being absent without Leave is not ipsojlirlo a Forfeiture of his Office. Now snjjpose that an Officer were called before the Governor and Council to show Cause why he left the Colony, and he should jiroduce a written Leave of Absence fiom the {Jovernor, with an Kxtcnsion thereof by His Majesty's Principal Secretary of State for the Colonies, is it possible that such Leave and F^xteiision would not be deemed a reasonable Cause by the Governor at least who granted it, and without whose Negative upon his own Act the Officer could not be removed ? But in the Instances in which a Leave from the Governor and Council is required, they are also aulhorized to jjroviiie for the Performance of the Duties of such Office during the Absence of the Incum- bent, which, if he were appointed by I'atent under the Greet Seal of England, they could not do without the Authority of this Act, because the Seal of the Colony could not revoke the Seal of iMigland, or in any Manner modify or controid the Power given by it; therefore I am of Opinion, that the only Case of Absence to which this Act applies is to one where an Officer ap- pointed by Patent nuder the Great Seal of England, the Duties of whose Office cannot lie dispenseil with, for some important Reasons, requires Leave of Absence for an inconvenient Period, in which Case the Governor and Council grant the Leave, and then appoint a Locum tenens to discharge the Duties of his Office during his Absence, which could not he done without the Authority of the Act, because it, would ceato a kind of do Meor joint Inc-imbency in several Offices. The P'irst Section of 54 Geo. Ik c. (il., commonly called Mr. Goulburn's Act, provides, that no Office sludl bo granted for any longer Term than during such Time as the Grantee thereof shall reside in the Colony, and execute the • Duty of his Office in Person, and behave well tiierein. The Second Section requires the CJovernor, 'vithin One Week after any Leave shall have been granted by himself and Council, to report the same to One of His Majesty's Principal Secretaries for Confirmation ; and declares, that in case said Leave of Absence shall not be confirmed within One Month from the Date of such Report having been received by the Secretary of State, the Person shall return to the Colony, and in default thereof shall be deemed to have vacated his Office, and his Appointment shall be void and of none Eflect. Now this as well as the former Act of 22 Geo. 3. are penal Acts, anil therefore, as Mr. Justice Willis correctly states, must be construed strictly* that is, in favour of the Persons to be affected by the Acts, and not, as he mcatis, rigidly against them. Penal Acts are strictly construed in fiivour of th a Subject, to the F^xclusion of all Cases not strictly or expressly named in them; but the only Case of F'orfeiture put by Mr. Goulburn's Act is that of the Officer not forthwith returning to the Colony upon the Negiect or Refusal' of fc^. C 101 ) or the Secretary of Stuto to confirm the I.c;nc Krante.l l.v thr (J..vcr..or aiul Lri';;.' n;r!.:ii:;r!;;" Aci: '^ "" "'"• ' •'" ■" '''''' '" ^'"'' ''"" •^""•" '-'^'^ Now. alil....iKli the Wor.ls „( M,. Coiill.iirn's Act arc MifHcictly laruc jHTliaps l„ cml.race Olhccrs appoint,,..! by Commission in ll.c Voloniis. y.t the ierm resale .Ims not mean l.t personally prese-.t n.," anm SmalL C c ( HH ) Inclosure, No. 6. Circular Letter from Mr. Secretary Huskisson to his Excellency Major General Sir Peregrine Maitland, K.C.B., relative to frequent Ai)i)li- cations having been made by Colonial Officers for a Renewal of their Leave of Absence. g. Downing Street, London, 30th June 1828. AiTUCATiONS having been frequently made to the Secretary of State, by Colonial Officers, for a Renewal of Leave of Absence originally obtained liom the Governors of the respective Colonics, the Expediency or Iiiex])ediency ot gratiting wiiicli renewed Leave could not be known to the Secretary of State, without previous Reference to the Governors ; and such Applications having, nevertheless, been generally made at a Time when tiie original Leave was on the Point of expiring, and when, therefore, the Applicant could not have reached the Colony in Time, without a Renewal of his Leave; I am to desire that you will make known to such Officers as may in future obtain Leave of Absence from vou, that if they should seek a Prolongation of such Leave from the Secretary of State, they will be expected cither to j)r()duce your written Authority lor the Application, or to apply at such a Period before the Termination of their original Leave, as will enable the Secretary of State to obtain the Opinion of the Governor before he grants or refuses the Application. I have, &c. Major General sir Peregrine Maitland, K.C.B. (Signed) W. HuSKISSON. &c. &e. &c. I Inclosure, No. 7. Opinion of the Solicitor General as to holding the Court of King's Bench in the Absence of the Chief Justice, gjj. York, 19tli June 1828. In obedience to the Commands of his Excellency the Lieutenant Governor, I have the Honour to report to you, for his Excellency's Information, my Opinion upon the following Question : Whether the Court of King's Bench in this Province can be legally holden in the Absence of the Chief Justice of the Province? Mr. Justice Willis, I am informed, has publicly expressed his Opinion, that the Court cannot be holden in the Absence of the Chief Justice ; and that all Acts done in Court in his Absence will be nugatory and void. From this Opinion I entirely dissent j but having been publicly expressed, although in an extra-judicial Manner, I am bound to regard it as the Sentiment of a Judge, and therefore entitled to the most grave and serious Consideration Legislature pa of this Act are as follows : '« For tue general and regular Administration of " Justice thrcughoiit this Province, be it enacted, Tiiat there be constituted " and established, and there is '.^reby constituted and established, a Court of " Law," &c. (to the End of the Clause.) Here it is necessary to bear in mind that the Intention of the Legislature is to estal^Ush a Court f Supreme Jurisdiction, and intended to fill the same Space in the Judicature < f Upper Canada that all the Superior Common Law Courts of \\'estminster Hall fill in England ; and, therefore, I can hardly imagine that at a Moment when a Court of such extensive Jurisdiction was about to be constituted, the same Legislature c uld exi)ect their Enactments, in relation to that _)!)ject, to be construed as if their Intention had been merely tiie Creation of a Jurisdiction inferior to cue already in existence, whose Powers were and f;ught to he citntrouled by that Superior Court of Judicature. The Court is established by the Act ; and, therefore, the Term "Court" does not mean la the ( 103 ) the Jiidpes of tlie Court, who were impointed allerwarils, nor the Ruilding in which it was to be holdeii, wiiich was not tiien erected, but tlie Junsihction and Authority whicli was to be exercised. Tiie Court existed before Judges were appointed or a Building appropriated for liieir Reception. . , . , „. The Expression upon which ail tiie Difficulty has been raised is, thatllis Majesty's Chief Justice of this Province, together witii Two Puisne Justices, shall preside in the said Court. In construing the Act we must take notice of the actual State of Things at the Time it became a Law. At the Time of the passing of this Act. in July 17i)I, there was a thiet Justice of the Province of Upper Canada, but there were not Iwo 1 uisnc Justices, which will probably account for his being called the Chief Justice of Upper Canada, instead of Chief Justice of the Court of King's Bench ; and for the Expression " together with," used for coupling the Two Puisne Judges with the Chief Justice of Upper C:anada. which would otherwise more naturally have been "and." When tiie Puisne Judges were siibseipiently apiioiiited, their Coinniissions,as well as that of the Chief Justice, constituted and appointed each a Judge, with full Power and Authority to hold the said Court of King's Bench at such Places and Times as the same might and ought to be holden within the Province. Therefore, unless the Commissions of all the Judges are in this Respect void, each One is authorized to hold the Court in like Manner as any Judge of the Superior Courts of Record may do in Eiiglan I. The King, by his Prerogative, might unquestionably have established a Common Law Court, and appointed His Judges, without any Act of the Legislature; but the Legislature having established a Court, the Question is, Wl ether the King has by his Commission contravened the Intention of the Legislature, of which he was a Part, by the Manner of his appointing the Judges? and I think he has not. The Act does not say they sliall collectively preside at the same Time and in the same Place; it says that the Chief Justice, with Two Puisne Judges, shall preside, which they may do separately. Ihey each and all of them preside when they superintend the Business and regulate the Practice of the Court at their Chambers, as well as in Court ; that is, tiiey watch over, manage, and direct the Proceedings of the Court, which I ajjpre- hend to be the Meaning of the Word preside, as it is used in this Act; and they can frequently be more usefully employed separately than together; the Propriety of which Course they, as Judges of a Court of Supreme Jurisdiction, must necessarily have Discretion given them to determine. Their Presidency is not limited to Place, but another Term is used when the Locality of Court is spoken of; namely, " holden." Three Judges shall '« preside in the said Court, which Court shall be holden m a Place certain." If the Act had meant that they could only preside in the " Place certain," it would have been so expressed ; and the Words " which Court should be « holden " would naturally be omitted. Then the Act wouUl have read thus, " and that His Majesty's Chief Justice, together with Two Puisne Judges, «' shall preside in the said Court in a Place certain ;" but this is not the Lano-uage of the Act, which does not, in my Opinion, limit the Superintendence of the Tudges to the Place certain where the Court is to l)e holden ; conse- qi.ently the Word " preside " cannot be made to mean sit together in the Place certain to discharge their Functions ; which would deprive the Judges of the Powers and Authorities incident to the Judges of tiie Siii)erior Courts in England, and would deprive them of the Means of proceeding by such Course as " shall tend with Justice and Dispatch to determine " the Actions, Causes, or Suits instituted before them. If the Act is to be construed with that Degree of Rigidity to the Letter, which would be adopted in expounding an Act establishing a new Court of Summary Jurisdiction, the Court is deprived of the extensive Powers evidently intended to be conferred upon it. How could a single Judge in Chambers make an Order, if Two in Court cannot? The whole of the Chamber Business of a Judge of a Superior Court would necessarily vanish ; and the whole Business of the Court would necessarily be confined to the Four Terms c^f Sitting, to the manifest Injustice and Delay of Suitors, instead of Justice and I lispatih. In Contemplation ■ f the Law (,t England, the whole Term is but i ne , ay, and what is d-ne during lerin has relation to the Hrst uay of Term ; but should this new Reading of the Law be correct. ■ * m\ i; ( 104 ) correct, this Idea must be exploded, and Parties miglit require the Names of all the Judfres to be entered on the Record as present at every Step of the Cause and their Absence alleged as Krior; so all Proceedings in Vacation have relation to the last Day of Jem, when the Act contemplates the occasional Absience of the l-luel Justice. All Judgments, notwithstanding they are entered by the Clerk are. in Contemplation of Law, severally pronounced by the Court, and there' fore 1 a Judgment is entered in Vacation, it might be alleged for Error that the Chief Justice was not present on the last Day of Term when the Judff. ment was given, although the Law contemplates his occasional Absence on that Day, when it authorizes Writs issued in his Absence to be tested by the Senior .uisne Judge. Again, Continuances are entored on the Record to the last Day o the issuable Term invariably, and yet, if the Chief Justice were absent, and no Court could on that Account be holden, the Cause would abate • so would the Death, or Absence even from Sickness, of any Judtfe on anv Return Day, if no Court could be held without the Three, cause the Writs then returnabe to abate. The Writs require the Parties to appear on such a Day before the Justices, which, in Contemplation of Law, they do personally or by Attorney in open Court, although in fact their Appearance is recorded by the Ofhcer of the Court, upon a Precipe to that EfTect filed in the Office of the Clerk; tlierefore if no Court can be held without the Three Judees it is manifest the Defendant in such Case would not appear in Court, and tl.ere ore the Writ would abate. Such a State of Things would produce anythinc but a « regular Administration of Justice ;" and the Delay and consequent Injustice thereby produced would be intolerable. Every Time a Judee was sick, and unable to attend ii. Court, numerous Discontinuances would be the Consequence, to the great Ru;n of the Suitors. I apprehend it matters not how this Court is established, wiietber by Common or Statute Law, so long as its Authority is unlimited, and as the Provisions of Its Constitution are not violated in endeavouring to carry those Provisions into Effect. Ccssante ralmw ce.ssal et lex. The Reason why Courts erected by Act of Parliament in England are to be confined strictly within the Letter of' their Constitution is, that e-ery new Court infringes and encroaches upon the Jurisdiction of some other Court already in existence, of which all Courts are jealous ; and also m many Cases, these new Jurisdictions tend to abridee the i^iberty of the Subject. ° These Reiisons cannot be urged here; and therefore this Act, having for its Object the CrciUion of a Court of Superior Jurisdiction in a Colon v previously possessing no efiicicnt rnbunal at all. should be construed liberally, without which Construction the Intention of the Legislature never can be attained and not strictly, oy wluch latter the Intention will be effectually frustrated ' In the instances put by Mr. Justice Willis, in Illustration of l.is Argument, y.e Authoriy ,s differently conferred, and for a different Purpose. ^ In the Case of Writs of Error in the Exchequer Chamber, the Court is not substan- tively appointed o hear Errors; and there certain Persons designated to pre side, but certain Persons, are required to hear and determine Errors in a certain Place, and consequently the particular Individuals named must attend tl le Duty being personal, and not vested in a Court possessing a given Jurisdic tion ; but m the Case strongly relied upon by Mr. Justice Willis; and to which he desires to draw particular Attention, namely, the Court of Exchequer Chambers, created by Act 31 Edw..3. c. 12., which directs that the ChancE and Ireasurer (the latter is not now required) shall cause to come before them m any Chamber of Conned nigh the Exchequer, the Record, &c., taking t" them the Justices and other sage Persons, and thereupon duly examine, &c I find, to be the Practice for the Chief Justice of King's Bench and the Clue Jus ice of Common Pleas to hear these Errors argued alone. See 1 1. R.511. which IS much stronger than the present Case. These Two Indies heard a Cause previously decided by a Court composed of Four Judges and upon their Judgment the former one was reversed. This being a Court of Appea might be a strong Reason for requiring the Justices, which means aU the Judges of King's Bench and Common Pleas, with the Chancellor and I reasurer, to hear Appeals f^rom Superior Courts ; and yet the Chief Justices of each Court are now considered sufficient to hear the Cause, and to answer the n "'t ( lUJ ) the Kxijrcncy of tlu' Statntc, wliidi is any tiling but a strict fonstmction. lint I am o< opmioii, that tlu- (air, ri-asoiiablc, am! natural (.'onst ruction of the Law IS in favonr of One or Two Judges hoidint,' the Court; and so the l^'Kis- latnrehavc frequently shewn by their Knactments. In the Year ISO,}, Nine Years after the passing tlie Act estabhsliing the Court of King's liench, and dunng winch Period the Chief Justice of the Province had been absent more than Once for a long Interval, and during whicii Period also Two Judges had usually sat and transacted the Business of the Court, an Act to enable Klarried Women having Heal Estate more conveniently to alien and convey the same was passed, in the Third Clause whereof it is provided that a certain Certificate, therein required to be given of an Examination of such Married Wom.-n m open Court, " shall be signed by the Cliief Justice, or, in his Absence. " by the Senior Puisne Judge of the said Court," expressly recognizing the Sitting of the Court without the Chief Justice. Hy the la.st King's Bench Act, passed in 18'2'2, the Sitting of the Court is also contem- plated when he is not giving a personal Attendance in Court. By tlx' 6th Clause, privileged Persons (of whom the Chief Ju.stice is the piincipal) are authorized to proceed by Bill in the Court of King's Bench ; but no Person can sit in Judgment in his own Cause. Therefore, unless a Court can be hohleu without the Chief Justice, he can neither sue nor be sued in the Colony. The Puisne Judges would be, of course, in the same Predicament. At Common Law, when there are divers Judges of a Court of Record, the Act of any One of them is effectual, especially if their Commission do not expressly require more. 2 Haw. P. C. ch. 1. sec. 10. This is recognized in Bac. Ab. as good Law. And although it has been said, that the Act of the Provincial Legislature must be taken as Part of the Commission, and therefore, the Act saying all shall preside, the Commissions are so far void; yet, as the Act does not expressly require them all to act jointly together, the Common Law and the King's Prerogative shall not be abridged without express Words to that Effect. In Truth, the other Construction is in Contravention of the Act, which says, that " the Court shall possess all such Powers and Authorities as by the l^w " of England are incident to a Superior Court of Civil and Criminal Jurisdic- " tion ;" and it is a most important Incident to all such Courts of England, that each of the Judges shall have Power to hold the Court. There is no Quorum in these Courts. One acting in Court in the Name of the Whole is effectual. ^ If such a confined Construction is to be given to the Act establishing the Court of King's Bench, because it creates a new Court, and is to be strictly construed, the same Rule will apply to the 31st of the late King, constituting the Provincial Legislature ; and then what Power has either the Legislature, Council, or House of Assembly to appoint a Quorum, consisting of a Part only of the Members con^'ifuting each Body ? Perhaps, however, instead of looking at this as a Question open for Discission, the more correct Mode of treating it would be, to regard it as already judicially determined ; which it most unquestionably has been, by the uniform Practice of all the Judges who ever sat in the Court from itb Creation, which, if the Words admitted of ever so strong an Interpretation the other Way, would, until their Judgments were appealed from to a higher Tribunal, and reversed on that Ground, be binding on all Judges of the same Court at the present Day. I am, therefore, clearly of opinion, that the Court of King's Bench may legally be hoiden by One or both of the Puisne Judges in the Absence of the Chiel Justice. I have, &c. &c. (Signed) H. J. Boulton, Solicitor General. Major Hillier, &c. &c. &c. Dd I ( KJT) ) Inclosure, No. 8. Copy of a Commission to the Honourable William Dimmer Powell, as a Vuisne Jiiiige of the Court o< Kinj^'s Hencli in Upper Canada ; dated 9tli July ifiH. George the Third, by the Graee of Ciod, of Great Hritain, Franee, and Ireland, King, Defender of the Faith, &c. &c. &c. To all to \vhon\ these Presents shall come, greeting : Know ye, that having taken into Our Royal Consiileration the Loyalty, Integrity, and Ability of Our trusty and well-beloved William Dunmer Powell, Lsq., have constituted and appointed him, the said William Dunmer Powell, to be One of Our Justices of Our Court of King's Bench within Our Province of Upper Canada, in America, to have, hold, execute, and enjoy the said Office unto him the said William Dunmer Powell, for and during Our Pleasure and his Residence within Our said Province ; together with all and singular the Rights, Profits, Privileges, and Emolur.ients unto the said Place belonging, in the most full and ample Manner, with full Power and Authority to hold the said Court of King's Bench at such Places and Times as the same may and ought to be helil within Our said Province. In Testimony whereof We have caused these Our Letters to be made Patent, and the Great Seal of Our said Province of Upper Canada to be hereunto affixed. Witness, Our trusty and well-beloved Joh'^ Graves Simcoe, Esq., Our Lieutenant Governor and Colonel commanding Our Forces in the said Province, at Our Government House, Navy Hall, this Ninth Day of July, in the Year of Our Lord One (housand seven hundred and ninety-four, and of Our Reign the Thirty-fourth. (Signed) Wm. Jarvis, Sec. Inclosure, No. 9. Copy of a ('ommission to the Honourable Peter Russell, as a Piiisn6 Judge of the "ourt of King's Bench in Upper Canada ; dated 10th November, in the Thirty-fifth Year of the Reign of George the Third. Upper Canada. George the Third, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. &c. &c. To the Honourable Peter Russell, Our Receiver General, and to all others, greeting : Know ye, that for as much as Our Bench is empty by the Removal of Our late Chief Justice, and We have not yet appointed a Second Puisne Judge, and because We are appre- hensive that full and complete Justice cannot be administered in Our said Pro- vince, We have thought fit to appoint you to sit on Our Bench, with Our trusty and well-beloved the Honourable William D. Powell, at all Times when his Presence shall and may be necessary, during the Term of Easter now next ensuing the Date of these Presents. Given under the Great Seal of Our Pro- vince. Witness, Our trusty and well-beloved John Graves Simcoe, Our Lieutenant Governor and Colonel commanding Our Forces, this Tenth Day of November, at Navy Hall, in the Thirty-fifth Year of Our Reign. Be it remembered, that this ("Commission was made out by the Attorney General. (Signed) Wm. Jakvis, Sec. *)) ( 10? ^ Inclusure, No. 10. (.'ony of a Commission to tlio Honourable Pett-r Russell, as u Fiiisn6 Judge of His Majesty's Court of King's Hencli ; dated 17tli December 1797- George tiie Third, by the Cirace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. &c. &c. To the Honourable I'eter Russell, and to all Oui iovMig .Subjects, greeting: Wiiereas by an Act of the Parliament of Our Province, jmssed in the Tiiirty-fourtii Year of Our Reign, intituled " An Act to establish ^ Supreme Court of Civil and Criminal Juris- " diction, and to regulate tlic Court of Appeal," it is directed, " that Our " Chie" Justice of Our Province of Upper Canada, together with Two Puisne " Judges, shall preside in the said Court ;" and because We have not yet appointed a Person to fill the vacant Seat of the Second Puisne Judge of the said Court of Our Bench ; and Wc, being well assured of your Loyalty and Integrity, have ihought fit to appoint, and do hereby appoint you, the said Peter Russell, to fill the said vacant Seat for and during the Term of Hilary now next ensuing. In Testimony whereof We have caused the Great Seal of Our said Province to be hereunto affixed. Witness, Our trusty and well-beloved the Honourable Peter Russell, Our President administering the Government of Our said Province, this Seventeenth Day of December, in the Year of Our Lord One thousand seven hundred and ninety-seven, and in the Thirty-eighth Year of Our Reign. Secretary's Office, (Signed) WiLLIAM JaRVIS, SbC. 23(iJune 1828. It Inclosure, No. IL Crown Office, 19lh .Iiine 1828. A Statement of tiie Names of the Judges of the Court of King's Bench actually present in Court at the several Terms since its first Constitution. Michaelmas Term, ?4 Geo. 3 .—6th October 1794. Present — The Hon. Wm. D. Powell, J. Hilary Term, 35 Geo. 3.— 19th January 1795. Present — The Hon. Wm. D. Powell, J. Same Term, 26th January 1795. Present — The Hon. Wm. D. Powell, J. P. Russell, J. (Private Gentleman). Easter Term 1795. Present — The Hon. Wm. D. Powell, J. Peter Russell, J. Part of the Term, the Hon. Peter Russell only. Trinity Term 1795. Present — The same Judges. Michaelmas Term 1795. Present — The same Judges. Hilary Term 1796. present — The same Judges. Easter ( 'US ) 4 1 t , 'f • 5 ' ! i I E a' ■ t. ... 1 Kastei Term 17y(i. Present — Tlio same Judges. Trinity Term I796. Present, Part of tlie Term — The Hon. Wm. D. Powell, J. only. Remainder of Term | .^f'"' ^; ''"^yp". •'• i Peter Russell, J. Michaelmas Term 17'JG. Present — The same Judges. Hilary Term I797. The Hon. John Elmsley, sworn in Chief Justice. Peter Russell, sworn in a Judge during the Term. Wm. D. Powell, absent. Easter Term 1797. Present — The Hon. J. Elmsley, C. J. Peter Russell, sworn in a Justice during Term. Trinity Term 1797. Present — The Hon. J. Elmsley, C.J. Peter Russell, sworn in a Justice during Term. Michaelmas Term 1797. Present — The Hon. J. Elmsley, C. J. W. D. Powell, Senior Puisne Judge. Hilary Term I798, Present — The same Judges. Easter Term I798. J'resent, Part of the Term — The Chief Justice only. Remainder of Term | ^^ S"''^ w'S'^d ,. . \ The Hon. W. D. Powell, J. Trinity Tern; I798. The same as last Term. Michaelmas Term 1798. The same as last Term. Hilary Term 1799. Present — The Hon. J. Elmsley, C. J. H. Alcock, sworn in a Judge. Easter Term 1799. Pre,e„..0,> the Fi„. Dv^^eH^n. W,a Powell, J. {The Hon. J. Elmsley, C. J. W. D. Powell, J. H. Alcock, J. Trinity Term 1799. Present Part of the Term|^^Elmsley,^ C. J. C Hon. J. Elmsley, C. J. Remainder of Term.^ W. D. Powell, J. I H. Alcock, J. Michaelmas ( 109 ) Mic-hacliuas Term 1700. I'lcseiit — Tlu- Hon. J. KImslcv, C. J. W. 1). Powell, J. H. Alcock, J. Hilary Term 18CX). „ , 1, . <• .1 'I- (The Hon. J. Elnisley, C.J. Present, Part ot the lcrm| H. Alcock, J. Remainder of Term — All the Judges. Muster Term 1800. Present, Part of the Term, only Two .Fudges; the Remainder of the Term, all the Judges. Trinity Term 1800. Present, the same as last Term. Michaelmas Term 1800. Present, Part of the Term, only Two Judges ; the Remainder of the Term> all the Judges. Hilary Term 1801. Present, as in last Term. Easter Term 1801. Present — The Hon. .1. Elnisley, C. J. Wm. D.Powell, J. Trinity Term 1801. Present, Part of the Term, only One Judge ; the Remainder of the Term, all the Judges. Michaelmas Term 1801. Present — The Hon. J. Elmsley, C. J. Wm. D. Powell, J. Hilary Term 1802. Present, Part of the Term — The Hon. J. Elmsley, C. J. r. 1 i-T- f The Chief Justice. RemamderofTermj.j,,,^pj^„ ^D p^^glj J. Easter Term 1802. Present — The Hon. J. Emsley, C. J. H. Alcock, J. Trinity Term 1802. Present, Part of the Term, the Hon. the Chief Justice only ; Remainder of the Term, the Three Judges. Michaelmas Term 1802. Present — The Hon. Henry Alcock, C. J. W. D. Powell. J. Hilary Term 1803. I'rcsent, the same as last Term. Ee Easter w [5 I ( ■ ¥' ( iiu ) Easter Term 1803. Present, the same as last 'J erm. Trinity Term 180.S. Present, the same as last Term. Michaelmas Term 1303. Present — The Hon. Henry Alcock, C. J. W. D. Powell, J. ■ Thomas Cochrane, J. The Chief Justice absent One Day; Mr. JusUce Cochrane absent Two Days. Hilary Term 1804. Present— -The Hon. Henry Alcock, C.J. W. D. Powell, J. Easter Term 1804. Present, the same as last Term. Trinity Term 1804. Present, the same as last Term. Michaelmas Term 1804. Present — The Hon. W. D, Vowell, J. Hilary Term 1805. Present, the same as last Term. Easter Term 1805. Present, the same as last Term. Trinity Term 1805. Present, the same as last Term. Michaelmas Term 1805. Present— The Hon, W. D. Powell, J. Robert Thorpe, J. Hilary Term 1806. Present— The Hon. W. D. Powell, J. ■ Robert Thorpe, J. Easter Term 1806. Present, the same as last Term. Trinity Term 1806. Present, the same as last Term. Michaelmas Term 1806. Present — The Hon. Thomas Scott, C. J, W. D. Powell, J. Robert Thorpe, J. Each of the Puisne Judges absent Part of the Term. Hilary ( Ul ) IB 1 1 1 /' i Hilary Term 18()7. Present —The Hon. Thomas .Scott, C. J. ■ Robert Thorpe, J. Each of tlie above Judges was absenf Part of the rcrni, Easter Term 18(17. Present — The Hon. Thomas Scott, C. J. ■ Robert Tliorpe, J. r ■■ Trinity Term I8O7. Present, same as last Term. Michaelmas Term I8O7. Pre.scnt — The Hon. Thomas Scott, C. J. William D. Powell, J. ' Hilary Term 1808. Present, same as last Term. 1 Easter Term 1808. Present, same as last Term. ■ i 1 Trinity Term 1808. Present— The Hon. Thomas Scott, C.J. W. D. Powell, J. Michaelmas Term 1808. Present, the same as last Term. •1 ii! Hilary Term I8O9. Present — The Hon. Thomas Scott, C.J. Wm. D. Powell, J. Easter Term 1809. Present, the same as last Term. Trinity Term 1809. Present, the same as last Term. 1 Michaelmas Term I8O9. Present, the same as last Term. W^^^^m^ Hilary Term 1810. . Present, the same as last Term. m Easter Term 1810. Present, the same as last Term. ^pmiiB^ Trinity Term 1810. * Present, the same as last Term. *.' Michaelmaa !!il I B I ( ll'3 Micliiti-lma> reiJii IHK). I'ri'sciit, tlic ^ainc as last Term. Hilary Term IHll. Prt'Sfiit, the saiT'e as last Term. KaMter Torm ISll. Present — 'lliu Flon. Tliomas Scott, C.J. W. I). Powell, .F. Trinity Term 1811. Present, the same as last Term. , Miehaelnms Term 1811. J'reseiil. the same as last Term. Hilary Term, .ii-M Geo. 3. 181'2. Present — The lion. Thomas Scott, C. J. W. 1). Powell, J. William Campbell, J. Raster Term 18iy. Present, the same as in last Term. Trinity Term 181'2. Present, the same as in last Term. Kacli Judge absent at Times during tiie Term, Michaelmas Term ISiy. Present, the same as in last Term. Mr. Justice Campbell absent at Times during the Term. Hilary Term 181'^. Present — The Chief Justice. The Hon. W. D. Powell. William Campbell. Easter Term 1813. Present — The Chief .1 ustice. The Hon. W. D. Powell. William Campbell. Trinity Term 1813. Present, same as last Ten. Michaelmas Term 1813. Present — The Hon. Thomas Scott, ( . . Mr. Justice Powell was present One Day only. Hilary Term 1814. Present — The Hon. Thomas Scott, C. J. W. D. Powell, J. \\'illiam Campbell, J. Easter ( na ) KaHtei Term 1814. Present, the same UH in last Term. Trinity Tern 181 1. Present, the same as in h»»t Term. Michaelmas Term 1814. Present — The Hon, Thomas Scott, C. J. W. 1). Powell. J. \V. Campbell, J. The lion. W. Campbell, absent Part of the Time. Hilary Term 1815. Present, the same Judges as last Term. The Chief Justice absent Part oC the Term. Easter Term 1815. Present — The Hon. Chief Justic, and Mr, Justice Powell. The latter absent Part f the Term. Trinity Term 1815. Present — The Hon. Tlior..as Scott, C. J. Mr. Justice Powell. Michaelmas Term 1815. Present — The Hon. Thomas Scott, C. J. William 1). Powell, J. William Campbell, J. Hilary Term 1816. I'rcsent, the same as last Term. Easter Term 181G. Present — The Hon. Thomas Scott, C. J. —— Mr. Justice Powell. Mr. Justice Campbell. Trinity Term 1816. Present — The Hon. Thomas Scott, C. J. — ^ Mr. Justice Campbell. Michaelmas Term 1816. - Present — The Hon. W. D. Powell, C. J. W. Campbell, J. Hilary Term 181?. Present, the same as last Term. Easter Term 181?. Present— The Hon. Wm. 1). Powell, C. J. - Wm. Campbell, J. Trinity Term I8I7. Present, the same as last Term. Ff Michaelmas ( 111 .) Micli;ifliMits 'IVirn l«i;. IVcst'iit, the suiiic as ltt-,1 'rcriii. Ililui) Term 1SI«. Present, the same as last IVnii. Kustei IVnii hsih. Present — The Hon. Wni. 1). Powell, t'. J. U'Arty Uoiilton, J. Mr.Jiisiir-t. Campbell, Puit of the Time. Trinity Term ISlS. Present — Ti,t Hon. the Chi»'' Justice. Mr. .Jnstic^ Campbell. Mr. Justice Houlton. Michaelmas Term 1818. Present, the same as last Term. Hilary Term 18iy. Present, the same as last J'erni. Kaster '•'erm 18iy. Present, the same as last Term. Trinity Term 18iy. Present — The Ho:., the Cliiei" Justice. Mr. Justice Campbell. Mr. Justice Uoulton, Michaelmas Term 18iy. Present, ihc same as last Term. Pr I'art, and 1 Hilui_) Tenii 1 820. Present, the same as last Term. Easter Term ISiiU. Present, the same as last Term. ■ Trinity Term 18i20. Present, the same as last Term. Michaelmas Term 1820. Present, the same as last Term. Hilary Term 1821, 1 Geo. L. Present, the same as last Term. Easter Term 1821. Present, the same as last Term. ■ Trinity Term 1S21. Present, the same as last Term. Michaelmas las ( IIJ ) MichaelmuH Tenii \H'il. Pr«MDt, the iiuniv a» Lut Term. Hilary Term IS'i','. Present Part of the Term -The Chiet Justice and Mr. Justice Hoult,M, , "i V, ' V •*"'''..""[''^°" ""'y • Uemaiiuler nf the Term. Mr. JuHtice Campbei and Mr. Justice Doulton. *^ Ea«ter Term 18(^2. Present — The Hon. Mr. Justice Camphell. -^— Mr. Justice lioultun. Trinity Term IM'A'. Present, tlie same as hist Term. Michaehi):i^T*erm 18'JS. Present — The Hon. A% Chief Justice Powell. ' AflS Justice Cinpbell. ■ Mi^ Justice Bouiton, Hilary Term 1823. Present, the same as last Term ; each absent occasionally. Easter Term 1823. Present, the same as last Term. Trinity Term 1823. Present — The Hon. the Chief Justice. Mr. Justice Boulton. Michaelmas Term 1823. Present — The Hon. the Chief Justice. Mr. Justice Campbell. Mr. Justice Boulton. Hilary Term 1824. Present — The Hon, the Chief Justice. Mr. Justice Campbell. Mr. Justice Boulton. The Chief Justice and Mr. Justice Campbell absent occasionally. Easter Term 182t. Present, the same Judges as last Term ; each occasionally absent. Trinity Term 182t. Present, the same Judges as last Term. Michaelmas Term 1824. Present, the same Judges as last Term. Hilary Term 1825. Fiesent — The Hon. Mr. Justice ('ami)bell. ' Mr. Justice Boulton. The Chief Justice Part of the Term. Easter ( Ilfi ) Kuster Term IS'i'i. Present — The Chief Justice. The Hon. Mr. Justice Ciirii|)l)cll. Mr. .Fiisticc IJoiiltoii. The Chief" Justice and Mr. Justice IJoulton absent occasionally. Trinity Term IK .'.7. Present — The Hon. W. 1). rowcll, C. J. W. Canij)I)eil, J. Michaelmas Term 18'2.5. Present — Tiic Mon. W. Campbell, C.J. Levins P. Sherwood, J. Hilary Term IS^'i-d. Present, the same as last Term. Easter Term 182(). Present, the same as last Term. Mr. Justice .Sherwood absent Twice. Trinity Term 182G. Present — The Hon. the Chief Justice. Mr. Justice Sherwood. Miciiaelmas Term 182G. Present — The Hon. the Chief Justice. Mr. Justice Bcuiton. Mr. Justice Sher.vood. Hilary Term 1827- Present, the same as last Term. Easter Term 1827. Present — The Hon. W.Campbel'C.r. Mr. Justice 'lerwood. Trinity Term 1 827. Present, the same as last Term. Michaelmas Term 1827. Present — The Hon. W. Campbell, C. J. Mr. Justice Sherwood. Mr. Justice Willis. Hilary Term 1828. Present — The Hon. the Chief Justice. Mr. Justice Sherwood. - Mr. Justice Willis. The Chief Justice occasionally absent. Easter Term 1828. Present — The Hon. Mr. Justice Sherwood. Mr. Justice Willis. A true Statement. (Signed) James E. Small, Deputy Clerk of the Crown. ( 117 ) Inclusure, No. I'i- Copy of a Letter from the Honourable Mr. Justice Powell to iiis Kxcci- lency Lieutenant Governor (iore, respi'ctiny; UemuiiLTation tor Services perlbrmecl in the Absence of Mr. Justice Thorpe, c;^ York. 1 Oil. .\iii!ii«t 1S09. A Sf'cond Season beinp about to close without any Prospect of tlie Bench being filled, I hope it will not be thought indiscreet on my Tart to call your Excellency's Attention to a Subject which, however personal m the View ot this Address, does in no small Degree interest the Colony. The Absence of a single Judge, thotifih it leaves the liencli competent, yet throws upon the remaining an unequal Portion ol Labour and Responsibihty. Fid Mr. Thorpe returned to his Duty last Year, or a Successor sui.piied Ins Place, there would have been no Room for this Representation ; but as it is 1 entreat your Excellency to submit to His Majesty's Minister, inv humble Pretension to receive, tor the Year ending the lust July last. Halt the Salary of the inetficient Judge. , r,. » ■.- When your Excellency considers that I have tor more than Iwenty ^ears filled my present Station without Reproach, and have supplied the several Vacancies occasioned by Deatli or Promotion in Juit IVriod, 1 hope my present Application will meet your Support; and, if the Right Honourable Seeiet.iy ot- State will apply the Principle on which a similar Remimeration wis granted to me in 17ik, 2i)tli J.-iinnry 1828. We have perused the Dispatch of the Right Honourable Earl IJathiirst, late His Majesty's Secretary of State for the Colonies, respecting the Appointment of an additional or Third Puisne Judge to His Majesty's Couit ot King's Bench in this Province, and suggesting that Provision may be made tor the conve- nient Exercise of an equitable Jurisdiction, by committing to the Cliiet J'lstit-e, or One of the Puisne Judges of the Coi it ot King's Bench, the Judicial Othce of Chancellor, under tne Title of Master of the Rolls or Vice Chancellor ; and in obedience to the Commands of his Excellency the Lieutenant Governor, we have considered whether the Measure last referred to, or any Modihcation of it can be conveniently adopted in Upper Canada ; and also, whether it may be necessary to obtain an Act of the Legislature, or to issue Letters 1 ateiit under the Great Seal, in order to render the proposed Increase to the Number of Judges legal and etfcctual. ,. ■ •, n ,i And we have now the Honour to report, that in our Opinion it would luit be advisible to erect an equitable Jurisdiction by Commission. It is at least doubtful whether, since the passing of the Bill of Rights, it is in the lower ()t the Crown to constitute any Juristliction, with Authority to proceeil otherwise than by the Rules and upon the Principles of the Common Law ; and as the Erection of an equitable Jurisdiction can only be desired lor the common Benefit of His Majesty's Subjects in this Colony, we see ik. Reason to recom- mend that it should not be left to rest upon the sure Basis ot a Le- islative hiiact- ment rather than upon the Exercise of a doiibtfiil Prerogative, particularly as the Ibrnier Course would jiroperly include a suitable Provision from the Provincial Revenue tor the Maintenance of iho Otliceis constituting the Court. In reference to that Part of his Lordship's Dispatch which relates to the Ajjpoint, *""' (J g ment ( Its ) mi'iit ()(■ ;iii ;ul.liti(iii;il ' .(lj.-c t(. ilir ( 'oiirl cC Kind's IJcnrli, \vc have tlip Ilonoiir to ifjK.rt, that h\ ihe IVovincial Statiito of 17y|.,cieatin.^» uwu We liave, l^c. (Signed) John li. Robinson, Att. General. I. • . c T," ^'"J''";,"'"i«^ , H. liouLTOv, Sol. General. I'nrate Sec. to His Excellency ttiLe lit. Go». &c. «cc. &c. Inclosiire, No. 1,5. t Copy of a Letter fiom tho President of the Council to Mr. JuslTce Willis. ^ ' Kxiciitive Coiiiicil Oiliic, Vcirk, i'.tli June ih'.'X His Lxcellency the Lieutenant Governor having referred to the Executive Council the present State of His Majesty's Court of King's Hench. accompa ed an.ongs other Documents, with your Letter to his Kxcdiency's JVivat"' W ary of the 17th Instant, ,, which you state, " that you are and always slia le ...ost desirous to discharge such of the Duties as, under existing Circum- " .stances, you can legally perfbrm ;" and the (iovernmer. having^ever bein of Op.n.on tha the Court of King's Hench has hitherto been legally he d, a, 3 the Duties of the Judges well understood; ^ ^ I am directed by the Council, with reference to the Opinion publicly delivered by you on the ICth in.stant. to request, for their Informational Explanation you may be pleased to offer respecting the Duties you contemplatJ as we 1 with regard to the Term and Chamber Business as to the Circu t cKs' including, of course, the Trial of all Records emanating from the King' Be icl ' whether containing Pleadings of the present or a.iy preceding Term, and vhether passed before or since the Departure of the Chief Justice The Hon. Mr. Justice Willis. I have, &c. (Signed) J. Baby, Presiding Councillor. Inclosure, No. Iti. Copy of a Letter from the Honourable John Walpole Willis to the President of the Executive Council. '^"'' Vork, Upper Cuiiadii, 2i>\h June 182H. I HAVE to acknowledge the Receipt of your Letter of this Date: and to inform you. that I shall have much Pleasure in affi)r(iing the utmost Explana tion 111 my Power on the very important Topics to which you have referred at as early a Period as the Magnitude of the Enquiry will permit To tlie Honourable The President ol'ihe Executive Council, S:c. Ike. Kc. I have. &c. (Signed) John Wali-ole Willis. ( uo ) Inclosure, No. IJ, Copy of a Letter from the President of the Council to Mr. Justice ^Villis. oj Executive Council Clmniber, York, 2filh June 182y. I HAVE to acknowledge the Receipt uf your Letter of Yesterday's Date. With reference to my Communication, I am requested l)y the Council to state, that their Desire is to receive an explicit Declaration as to which, if any, of the Duties enumerated by me you are prepared to discharge ; and to add, the Public Service requires your early Answer. To the Hon. Mr. Justice Willis, &c. &c. &c. I have, &c. (Signed) J. Baby, Presiding Councillor. I :" Gi Inclosure, No. 18. fetter from Mr. Justice Willis to the President of the Executive Council. To the President of the Executive Council. 'honourable Sir York, Upper Canada, 26tli June 1828. Having in Easter Term joined in an Order of the Court of King's Bench, and also delivered my Sentiments in the Causes then argued before Mr Justice Sherwood and myself, following incautiously, as I admit, the Practice which had previously been adopted, when convinced of the Error of such Proceeding, and in order to rescinil, so far as I was concerned, the Order I had joined in, and to declare what I considered to be the Ett'ect of my Judgment, 1 felt myself legally, judicially, and religiously bound, by virtue of that Oath which was taken by me in your Presence, when I entered upon tlie Office to which His Majesty has graciously appointed me, to take the earliest Opi)ortunity of declaring, not only my 0|)inion, but my Hrm Conviction, (which must continue till over-ruled), that the Court of King's Bench, a:-, established by the Legis- lature of this Province, cannot legally sit in Bank, unless the Chief Justice, together with Two i'uisne Justices, preside in such Coint. It is a Court of statutory Creation ; and all or every of the several Duties permitted by the Legislative Enactments of tiiis Province (with which the Honourable Executive Coimcil, as Legislators, must be fully acquainted) to he discharged by One Jui!ge, or One in conjunction with the Chief Justice, I shall always be icady to perform. The precise Nature of those Duties (in case there be any Ques- tion respecting them) I can only give my Opinion upon judicially, when legally before me. It is not for Want of that Respect which no one feels more than I do for the Honourable Executive Council, that I do not now go more fully into the Question. But the Comments on the extra-judicia' Opinion first given in the Case of Shij) Money will not be forgotten. In the Opinion of a most eminent English Jurist — an Opinion expressed in a Work of such Celebrity as to be almost tantamount to a Decision, I allude to that of the celebrated legal Antiquarian and Editor of Lord Coke's Comment on Littleton — "However " numerous and strong the Precedents may be in favour even of the King's " consulting Judges, in Questions in which the Crown is (as I conceive in the " present Case) materially interested, it is a Rigiit to be understood with many " Exceptions, and such as ought to be exercised with great Reserve, lest the '• rigid Impartiality so essential to the judicial Capacity should be violated. " The Anticipation of judicial Opinions in Cases actually pending (as I think " is the Case here) should be particularly guarded against ; and therefore a " wise and ii|)right Judge will ever be cautious iiow he answers Questions " (extra-judicially) ofsucii a Tendency. So far one may venture to quality the " Right of his being required to do so, because even the House of Lords have " declined taking tlie Opinion of the Judges ibr Reasons of this Sort ; though '« their Attendance on that Assembly is confessedly for assisting tlie Lords in " Matter ( 1^1 ) *' Matter oi' Law." (See I-'ortesc. Hep. 381., 385.) Under these Circiimstaiices I most respectfully submit, previously to entering further into tlie Subject, whether I can be legally requested to do so by the Honourable the Executive Council. 1 must add, my private Wish is to give the fullest Information on the Subject ; but Respect must be had to my Oath, and to established and constitutional I^w. I have, &c. (Signed) .John Wali'olk Wilms. m Inclosiire, No. 19. Opinion of the Honourable Mr. Justice Sherwood, dated ^^.^th June 1828. On the Ninth Day of .fuly 1794 the Statute of the Provincial Legislatine 34 Geo. 8. cap. 2. was passed, to establish a Superior Court of Civil and Criminal Jurisdiction in Upper Canada. As the Common Law of Englai>d had been introduced into this Province before the Erection oi the Court of King's Bench, and as it was intended the Court should proceed according to the Course of the Common Law so introduced, the King might have established a Court of King's Bench without the Interference of the Provincial Legislature. This Position must be self-evident to every Professional Man, and I will not stop to cite Authorities in support of it, but proceed directly to examine what the Legislature actually did, and what it clearly left to be done by the King. The First Section of the Statute before all udetl to enacts, " That there " be constituted and established, and there is hereby constituted and estab- " lished, a Court of Law, to be called and known by the Name and Style ot His Majesty's Court of King's Bench tor the Province of Upper Canada, whicii shall be a Court of Becord of original Jurisdiction, and shall possess all such Powers and Authorities as by the Law of England are incident to a Superior Court of Civil and Criminal Jurisdiction ; and may and shall hold Plea in all Manner of Actions, Causes, or Suits, as well Crimint , inal as Civil, •• Real, Personal, and Mixed, arising, happening, or being within the said " Province, and may and shall proceed in such Actions, Causes, or Suits by " such Process and Course as shall tend with Justice and Dispatch to deter- " mine the same ; and may and shall hear and determine all Issues of Law ; " and shall also hear, and, by and with an Inquest of good and lawful Men, " determine all Issues of Fact that may be joined in any such Action, Cause,' " or Suit as aforesaid, and Judgment thereon give, and Execution thereof " award, in as full and ample a Manner as can or may be done in His " Majesty's Court of King's Bench, Common IJunch, or, in Matters which " regard the King's Uevenue, by tiie Court of Exchequer in England ; and " that His Majesty's Chief Justice of this Province, together with Two Puisne " Judges, shall preside in the said Court." There was another Act 2d Geo. 1th, passed on the lyth January 182J, which must be conr.idered in pari materia with tiie first Act, and construed with it as One Act ; and in order to avoid Confusion, 1 will constantly refer to them jointly as One Law, under the Denomination of the King's Bench Acts. The Preamble of the last Act states " it to be expedient to make certain •• Amendments in the Practice of His Majesty's Court of King's Bench in this " Province." And by the Pourth Section directs, "that the original. Process " for compelling the Appearance of the Defendant shall be a Writ of Capias " ad respondendum, tested in the Name of tlieCiiief Justice or Senior Puisne " Judge of the said Court for the Time being." The same Act further provides, by the Sixth Section, " that for and notwith- " standing any thing in this Act contained, it shall and may be lawful to '• proceed by Bill in any Case where by reason of any Privilege such Proceed- " ing is practised in the Court of King''s Bench in England, and that the like " Proceeding shall be had in Actions so commenced as in the said Court." By the Fourth Section 34 Geo. S. before mentioned, it was further enacted, " That all Writs to be sued out of the said Court shall issue in tlie King's li h X Name, ( I -2'.' ) ■ " Nai\if, iiiul he testtil b} Uie C^liiul'.Iiisticf, oi in liis Absence by the Senior " Judge of the t'oiirt." The foregoing Clauses of the King's Bench Acts I think suflicient for niy present Purpose, v.hicb is principally to examine the following Question, Can there be a Court of King's Bench in Upper Canada during the Absence of the Chief Justice? The ('hiet Justice is undoubtedly One of the Judges of the Court, pos- sessing precisely the same Powers, and no more, than the otiier Judges individually have, and he is expressly recognized as such Judge \\. the Ifith, Slst, and several other Sections of the last Act relative to the Court of King's Bench j and therefore, when the Court is full to the utmost Number allowed by Law, there must ot necessity be Three Judges present in Court. Supposing then, for a Moment, tlie 'I'hree Juilges to be personally present in Court, I will repeat a Part of the first Clause of the first Act that applies to them thus assembled, and upon which f'oundation has been erected all the Objections that with so much Industry have been recently brought in view. The Legislature by that Clause declared, " that the Chief Justice, together with " Two Puisne Judges, shall preside in the said Court." When a Lawyer follows nice Ileasoners, he must himself be particular, and I will therefore give the popular and generally accepted Definitions of the Expressions " together with " and " preside." The Words " together with " are both derived from the Saxnn, and when joined, as in this Case, mean " in union with;" the Word " preside" wi.s originally derived from the Latin " praesideo," subsequently fron) the French Word " presider," and signifies " to be set over;" so that the Legislature in other Words directs, " that the Chief Justice, in union with Two " Puisne Judges, shall beset over the Court," to direct, govern, and regulate its Proceedings. Supposing these Words, then, to stand in the Act imex- plained by any subsequent Words, could tliey possibly amount to any thing more than the following Proposition? "That the Court shall consist of Three " Judges, of whom the Chief Justice shall be the first in Rank and Dignity." The most fastidious Sophistry, 1 believe, has never gone the Length of inti- mating that the Chief .Justice possesses any greater judicial Power or Autho- rity than either of the other Judges possess, and therefore it is quite unne- cessary to say any thing to prove the reverse. As I have already shown, the Legislature directs tiiat the Court shall be a Court of Record, to consist of not more than Three Judges ; and as it is well known the Common Law of England is in full Force in this Province, and, as I have already said, I do not yet choose to resort to the other Parts of the King's Ben' h Acts tor the Purpose of explaining the Clause now under Consideration, I purpose to apply the Ruli!s of the Connnon Law to that End, before I consider the different Clauses of the Statutes. The Conunon Law Rule is in substance this: "All " Judges derive their Forcer a/id Authority J'rom the Crown, and where there arc " divers Judges of a Court of Record, the Act oj' atijj One oj' them is effectual, if " their Commissiou do not expresslij require more." 1 R. Abr. 381. fJ Mod. 83. 'v' R. Abr. (iy.O. 677. Co. Lit. [}[) a. It4. The Worils of the Statute should be construed, in the present View of the Subject, like the Words of the King's Commission at Common Law ; and if the Words of the Statute lio not expressly require Commissions to issue, directing all tiie Judges to join in every Step taken by the Cotuf, the Act of a less Number than Three must be valid. Now, I assert that the Words before stated do not expressly require any such Thing, nor any particular Number of Judges to do any Act in Court, but merely limits the Number of Judges, and shews which One shall be set over or at the Head of the Court. This, in Truth, is nothing more tlian the Effisct which a joint Commission at Common Law to divers Judges of a Court of Record must necessarily have ; for the first Judge named in such Commission would be at the Head of the Court, and, if present, would preside. (Haw. book 2d, cap. 20.) But I have already fully proved, that by virtue of such Commission the Act of the other Judge would be as binding and valid in Law as if the wiiole Number of Judges were present at the doing of such Act. What makes the Doctrine I advance still stronger, on general Principles of Common Law, is, that no joint Commissions are issued to the Judges in this Province, but each Judge receives ( l-iS ) reci'ives a soparate ("ommissiiin uiuler tlif (irtat Seal, autliori/iiig and impowci- iiig liiin to liolil the Court oi King's Ufncli at such Times and at siicl\ I'lacen as the Law prescribes. If the novel Opinion of the Advocates tor " Three " Judges or no Court " is in reality correct, then the King's Commissions to His Judges in this Province are incorrect, and the King's constitutional Prerogative is destroyed by mere forced Implication, without any express and clear Enactment of the Legislature to warrant it. This is a Position so clearly unconstitutional, that it can never be advocated with any reasonable Prospect of Success. To suppose the Legislature would give the Court of King's Bench, in Matters of Law, the united Powers and Authorities of tiie Courts of King's Uench, Common Pleas, and Exchc(|uer in England, which it has certaiidy done, and at the same Time really intend that the Judges here should not individually have the Rights, Powers, and Authorities which the Judges of the lowest of those Courts individually possess in England, seems to me so contrary to common Reason and the Nature of Things, that I most candidly confess I cannot entertain the Idea for a Moment. If the Presence of all the Judges be indispensably requisite to hold the Court ot King's Ik'ncli, notwithstanding their Commissions authorize any one of them to ilo so, tiien the following Anomalies and legal Absurdities must inevitably follow : 1st. The Judges of the Court of King's Bench can neither sue or be sued in this Province, like other Subjects. 2d. If any one of the Judges shoulil die in Vacation, all Proceedings instituted after the last Day of the preceding Term would be irregidar, for in Contemplation of Law the Writ issues and bears Teste during the Sitting of the Court. •3d. If any such Casualty should occur during the Sitting of tiie Court in Term, similar Consequences must follow, because in Contemplafion of Law the Term is considered but One Day. 4th. No Part of the Business of the Court could legally be done by any Judge at Chambers, ludess especially directed by Statute, although such Business is constantly done by the Judges in England and in other Colonics. ,5th. 'J'he Judges of the Court of King',-, Bench in this Province would •ollectively possess all the Powers in Matters of Law of the Courts of King's Bench, Common Pleas, and Exchequer in England, but would individually possess less Powers than the Judges ul' the District Courts in Upper Canada, because any one of tliesc Judges can hold the District Court. I have already shewn that the Principles of natural Justice embraced by the Common Law do not allow of such ICff'ects in Society ; and I will now endea- vour to show that the Wisdom of the Legislature has likewise guarded against them. I have stated that the King's Bunch .Acts do not direct in what Mannrr, or by whom, the Judges shall be apptiinteil; that the King by His Perogative has the Power of ai)pointing lliem ; that he has lione so, and by his ('ommission has authorized eacii Juilge to hold the ('oiirt. If the King's Bench Acts do not clearly make such Connnissions void, they are valiil and efl'ectual ; and I will attem|)t to show that they do not. In order, as far as possible, to elucidate the Subject, I will take a few long esta- blished and well known Rules of Law, originating in the Experience and sanctioned by the Wisdom of our English Ancestors. 1st. Whenever any ^V'ords of a Statute are doubt tul, the Intention of the Legislature is to be resorted to, in order to iliscover the Meaning of such Words. Plow. .57. '2d. The most natural and general Way of construing a Statute is to con- strue one Part by another of the Statute, i'ov W;;iils and Meaning of one Part of a Statute frequently lead to the Sense of another. I st Inst. SS\ . Plow. 3fi5. llMod. Itjl. 3d. Acts of Parliament shall be construed acconling to the IjuI and Intent for which they were passetl. Plow. Com. 465. a. 4th. Great Regard ought, in the construing of a Statute, to be paid to the Construction which the Sages of Law who lived about the Time, or soon after it was made, put upon it, because they were best able to jiulge of the Intention of the Makers. '2 Inst. 11. 136. 181. Every < !Mf I'owers possessed l)y tlu; Courts of ] flieoiier in Kiigland; and purticiilaily the C'omt here to that of the Court ul 1 (ircumstaiices would permit ( W+ ) Every caiuhd I'ersuii, in perusing the Kinjr's IJench Aets, must at once be convuiced, that tlie Legislature most certainly intended to invest the Court of King s Hench ni this Province, in Matters of Law, with the full and amnle Jowers possessed hv the Courts of King's Hench, Common Pleas and Ex- cheni.er in In.rh.n.l ■ mwI ..-.:-.. I...!,, i,,ten,ie(i to assimilate the Practice of King's Uench in England, as far as local ,. , . , I ^ ^^■"''•> to place the present Question in such a plain and famihar Point of View that the Conclusions which I endeavour I., arrive at may he manifest to every Header, whether !ie belong to the Profes- sion of the Law, or occupy any other I'iace in the Community ; and that he may be able to dett.iiiiPe lor himself whether such Conclusions be just or iHijnst. It appears to me, that if I can establish either of the following Prono- sitioMs, uiy Object will be decidedly gained ; and therefore I will couHne im- sclf to these, as it is desirable not to embanass the Subject with any unneces- sary Matter. 1st. 'l'l>c t'hief Justi.e may legally sue or be sued in the Court w'here he presides. ^2d. Ihere may be a legal Court in the Absence of One or the Judges. As to the first Proposition,—" The Chief .Justice may legally sue or be sued III the Court where he presides." No Man can be a Judge in his own ( ause and theretore, if the Chief Justice can sue or be sued, he must neces- sardy be absent from the Court during the Proceedings in his own Suit. TJe Chief Justice, the other Judges, and all the Officers of the Court of Kiiic's Hench and Common Pleas in England, have the undoubted Privilege of suiii- and being sued in the Courts where they discharge their Puljlic Duties" .SLcon. li.in., .Salk. .ms. J and our Legislature, anxious to confirm all Ensrlish' I rivileges, and to make the Practice of the Court in this Province similar to that of the King's Bench in England, as respects all Matters of Controversy relative to Property and Civil Rights, have matle a specific Enactment on tl- Subject. Ihc Si:.th Section of the Statute i Geo. 4. c. 1., being the last King's Bench Act, IS in the following Words:-" That for and notwithstanding any thinir in " this Act contained, it shall and may be lawfi:! to proceed by Bill in any Case ' 7,-^.'.'-' ^7 ';r""l' "*'","/ l'''vilege such I'roceeding is practised in the Court of King s Hench in England, and that the like Proceeding shall be had in ' Actions so comm.'uced as in the said Court, unless otherwise altered by the Rules of Mis Majesty's Court of King's Bench in this Province. In case the Chief Justice of England wishes to sue in the Kinc's Bench there may sue by Hill ; and by the Section of the Statute just mentioned, in case he ( hief Justice of Lpper Canada wishes tc sue in the Court of King's Bench here by Hill. ..i order to provide against the Absence or Death of any one of the .Judges, the Legislature has enacted, by the Fourth Section of the same Act and which 1 have also m ted at Length, that the onginal " Process of the Court shal issue tested in the Name of the Chief Justice or Senior 1 uisne .Judge of the said Court (br the Time being." I have ventured plainly to state the Intentions of the Legisl iture in making that Part of the Law last mentioned; fori cannot imagine any other Intention they could possibly have had within the Scope and Reason of the Law which they were then making, and wilnin the Scope and Reason of the Amendment and Alteiation fumi the Words of the Fust Sta cute on the same Subject, which were., that al \V nts to be sued out of the said Court shall issue in the King's Name tested l,y the Chief Justice, or in his Absence, by the Senior Judge o the ( ouit Under which Enactment they probably supposed that Writs could no legally issue n. the Name of a Judge, in the EVnt of the Death of one Chief Justice and before the Appointment of another, or in the Event of the Absence of the Senior Judge, and therefbre they made the latter Clause more general than the former, in order to embrace both Contingencies To suppose the Alte.v.tion was accidentally made by the Legislature, without any Design or Object in view, would be a Contempt of that august Body, and wouKi be doing great Injustice to the Individuals of whom it was composed. Again to sn,,pnse the Legislature intended that Writs might issue in the Name ol he Senior Judge, in exclusion of the Chief Justice, witTiout any good Reasot! or Litjse whatever for such a Deviation from the immemorial ifage of Eng" land ( 1^' ) land, ami the settled Practice oCthii Country, would be to Mipiuwe the Lcffis- lature intended to commit u Breach ol Constitutional l'roi)riety ard Decorum and to break down the established Distinctions in Otficial l)ignity and Rank in' this Colony. Indeed I am inclined to think, that a Writ sued in the Name of the Senior Juilge without any good Reason would decidedly be irregular and would !.e set aside upon Application to the Court for that Purpose. 1 there- fore conclude that one good Reason for suing out a Writ in the Name of the Senior Judge, in the Absence of the Chief Justice ; and that the Legislature intended by allowing a Writ to be so sued out, that the usual Proceedings should be had on it, whether the Chief Justice continued absent, or returned before the Suit ended. When a legal Proceeding is allowed to be commenced, which forms the First of a Series of subsequent legal Proceedings, it must necessarily be implied, that the Legislature intended to sanction such subsequent Proceedings, when they are indispensably requisite to the Attainment of the Object for which the first Proceeding was permitted, otherwise such Permission would be altogether futile and useless. As to the Second Position,—" There may be a legal Court iu the Absence " of One of the Judges." It appears to me that I have already proved a Legislative Recognition of the Doctrine contained in this Proposition, by stating the established Rule of Law;, as I have done, " that no Man can be a Judge in his own Cause ;" and by further shewing, t' it the Chief Justice may sue or be sued in the Court of King's Hench in this Province. Actions of this Kind have already been instituted, and carried on to final Judgment in the Court without Objection. I will proceed, however, to shew the Truth of the Second Proposition by other Arguments. Immediatelv after the passing of the First King's Bench Act, and in the same or in the next Year, and subsequently, the Court was held by One Judge at different Times tor the Performance of the common and ordinary Business of the Court, and which could be attended with no Doubt or Ditliculty. This has uniformly been the Practice in this Province for a Period of between Thirty and Forty Years ; and has been the Practice in Knglancl Time out of Mind. During about Ten Years subsequently to the making of the First King's Bench Act, there was but One Puisne Judge in this Province, and the uniform Practice evinces that all the Judges were of Opinion the Court could be legally held by Two Judges. The First King's Bench Act was drawn by a celebrated Chief Justice of this Province ; and the Practice already stated was commenced by himself while he presided, and has ever since been approved of and followed by all his Successors in Office, and by the other Judges. Here there is irrefragable Proof that the Learned in the Law at the Time of passing the Act, and immediately after the Period, put the same Construe tion on it, with respect to the present Question, that I now believe is the true and legal Construction ; and ii we carefully examine the different Parts of the King's Bench Acts, and attentively compare them with each other, we cannot help admitting that it is impossible to carry many of the most important Clauses into effect without such a Construction. How can the Court be held without this Construction, ui case one of the Judges is a Suitor ? This the Legislature, however, expressly allows him to be by the (Jth Clause of the last Act, and points out the Course he may pursue. How can the Court be held without this Construction in the Absence of the Chief Justice ? By the ith Section of the First and Second King's Bench Acts, however, his possible Absence is anticipated and provided for; and the Legislature in tl>nse Stv,uons recognizes, in my Opinion, the Legality of holding the Court by other Judges, 1 am convinced of the Truth of the Maxim adopted by Lord Coke in 2 Inst. " Contemporanea erpositio est fortis- shna in lege," that a contemporary Construction of a Statute is considered in Law the most honest ; and I think an Adherence to this Rule is peculiarly appropriate at the present Juncture, when great Exertions are made to con- travene what I consider the true Intentions of the Legislature. A contrary Construction must introduce Inconvenience and Injustice, materially affect the King's Commission, put it in the Power of bad Men to take undue Advantages Ii of iti I II, h ( \'iC ) iif tliL'ir unsiispi'ctinR Neighbours, ;4n""K r''' "'*^"''.' ^■''""^' '''"^^■"•- '""• »»«'rf. without If -tat .... that I beheve .snch Op.n.o., is erron.-ous. Jt in „.,t ..M.al for the U.a..a.| or ., he present ... the (. -.rt of Kxche.p.er Cha.nber when a.. v Cause li arj,M.ecl, alll.ouKh he .s the sole J,.age of the Court. A Perusal of ti.e Case 2s ) i't Kin^^'s Bcnrli, when the Practice ot I 'M.njj the Court by Two JikI^cs had pcrrfctly /iitnihar uiul ^rfniMullv known, pussoil u Stututf on ariothei Subject, which I^iw sceniH to inc to bo un unqualiticd llecofjiiition of tlic become perlecti;^ /umiliar anil ffenerallv known, passed u Statute on ariolhei be un unoualitied lletofjnition of tlie Practice before stated, and of the f '(instruction I now put upon the Kinu'« Uench Acts. I allude to the Provincial Statute 4.'J (ieo. .S.'c. .O., intituled " An Act to enable Married Women having Heal Kst«tes mor Keason, at the Time of the passing these Acts, for the Legislature to make such a Change in the established Princ'j)les of Kiiglish Jurisprudence as has lately been contended for, than would beat this Day; and I imagine no cnlightenccl Legislature now would ever tli'-'k of making a Law of the Description which tlie novel Con- struction of the Statute lately advanced would inevitably prove the King's Bench Acts to be. Whether any advantageous Alteration could be made in the Jurisdiction of the Court of Appeal in this Province, is an important Question, upon which I give no Opinion ; but I think it a Subject most worthy of ser-ous Con- sideration. (Signed) Levius P. Sherwood, J. 0*' No. 4. Separate. — Civil Servants. COPY of a Dispatch marked " Separate," from Major General Sir Peregrine Maitland to Mr. Secretary Huskisson, dated fith July 18'28. — Six Enclosures. Sir, York, Upper Caiinda, C July 1828. The very extraordinary Course which Mr. Willis has pursued, and of which I was left to gain the first Intimation by perusing at his Request his Letters to yourself and to Mr. Stephen, has compelled me to Measures which I would willingly have avoided, if any Alternative had been lell to me ; but, since I have been driven to them, it is necessary that I should state the Case explicitly, in order that you may clearly understand how indispensable it is to the Peace of this Province, and to the Character of the Government, that an absolute Stop sh )uld be put to a System of Piocoeding discreditable to the Adminis- tration of Justice, and most pernicious in its Influence upon Public Feeling. Now that Matters have been brought to this Issue, I cannot avoid declaring to you, that the Conduct of Mr. Willis, almost since his Arrival in this Colony, has been such as to make it Matter of deep Regret that his Want of .hat Discretion ■ ( >vW ) Dincri'tion ami those I'rintiplis wli.ili are iitccxj^ury in every Public Otlicer, btit .ibuvc all ill a .liul^e, sluuilil have eKcaped the Notice uf thoite personal Frii'iulH who recoiiinieiutetl liiui tor u judicial A|i(H)iiitineiit in thin Province, lit' came out with th > Expectation that in addition to the Situution of a ,ludk{u 111 the King's Hench, which hail been conferred upon him, he shuuld also be iipjioiiited a Judge in lupiity. The latter Arrangement took im' rather by Surprise ; because, though I had comni-inicated with Lord liatliumt on the Expediency of creating an equitable Jurisdiction iiere, there had, in Truth, ueen no Court of Equity yet created ; and Mr. Willis was therefore \et\ exposed to a Disappointment against which tiie (iovernment could not eiMuic him. To a Person of correct Disposition, the Apprehension of a Failure in such an Expectation must have created some Uneasiness ; but witli Mr. Willis tilt Suspense has had an Effect of a much more injurious Kind as regards himself, and produced no little Mischief in other Ilespcts. The Keport which the Attorney (ieneral made to nie alter the Session of the Legislature, will fully explain the Progress of the Measure here, and I therefore send u Copy of it with this Dispatch. Mr. Willis was not called iip(. by his Situation to meddle with the local I'olitics of the Colony ; and it was not expected of him. It was his Duty, on tlin contrary, to abstain. I was, therefore, not well pleased to hear him for some Time afler his Arrival boasting of his Attachment to th'j Government in a Strain of Levity and Indiscretion not becoming his judicial Character; but I believetl that he was in some Measure sincere in the Principles which he so ostentatiously avowed. His becoming a Subscriber to Two or Three notoriously scurrilous News- jiapers, whose contemptible Editors, (Men in the lowest Walk of Life,) were constantly occupied in slandering the Government, was no very fuvoiiralile .Symptom. He ought not to have suffered it to be said, thai a /uilge of the Court of King's Bench was the only respectable Member of Society who coii- trihuled to the Support of Newspapers teeming with Libels upon every honest and independent Public Servant in the Colony — upon his Brother Judges, and upon most of those with whom he was associating. He professed, nevertheless, great Abhorrence of the Licentiousness of these Papers, and yet declared that he sent them to the Colonial Office in order to shew tlie Department the Kind r' Country to which they had sent him. I fear he was rather tempted by tlieiu.. Wish of calling Attention to the fulsome Compliments which, for obvious Ends, the worthless Publishers of these Papers lavished upon him, and with which he ought to have been disgusted. It was, at all Events, giving too much Importance to what he ought to have treated with Contempt. Mr. Willis, from his Arrival in August to the Time the Legislature met, was treated with Kindness and Attention by the Government, and I have no Doubt equally so by his Brother Judges and the Crown Officers, and indeed by every one, so long as it was possible to preserve friendly Relations with him. He had been long expecting a Commission from England as Master of the Rolls, though it was generally thought 'lere that a Court must first be created by Parliament or hy the Provincial Legislature. In January, about the Time the Legislature met, your Dispatch of the 25th of November brought the Information that, in the Opinion of the Crown Officers, such a legislative Provision was hot necessary, and that the Commis- sion coultl not therefore issue, as was intended. This Disappointment Mr. Willis, with a characteristic Levity, and I dare say without the slightest Justice, ascribed freely in Conversation to a personal Resentment on the Part of Sir James Scarlett, the Attorney Genera!, whom he said he 'lud once challenged, and compelled to apologize, for some Rudeness on the Circuit. Soon after the Legislature met, Mi'. Willis adopted a very strange and unwarrantable Line of Coniluct, of which the Object is now perfectly evident. He associated himself intimately with Three Persons in the Assembly most conspicuous for an indecent and unprincipled Opposition to the Government ; and, as if it were an unavoidable Consequence of this Cfjnnection, he ab- stained fr"m forming any Acquaintance with those Gentlemen most respectable in Character and Station, and ceased to associate with those who hail but lecently bceii his must iutimute Friends. Cuusidciiiig bin Siatiuii as a Judge, K k this I rm ( i:io ) tliis Lmu of Coiiiluct was most unwortliy; because his new AssociiUcs were in reality oiil^ known by their intemperate Lanfrnage and Procecilings in the Assemljly, ai 1 were not of such a Stantling in Society as to make an"lntimacy of that kinil with Mr. Willis in any respect proper. Thinking that his Object was merely to ingratiate himself with those I ersons whose Support of the desired Measure he thought most doubtful, I merely regarded his Proceeding as evincing a total Want of Dignity and generous Feehng, and lamented that he was not superior to the Temptation which Circumstances had unfortunately thrown in iiis Way; but it was soon very evident that Mr. Willis's Views were directed to another Object. He was in the daily Habit of frequenting the House of Assembly, from whose Debates the Judges in this Colony have ever felt it discreet to abstain : and It was universally spoken of as a great Indecency that he was seen in a Dress and Manner but little according with his Situation, hanging about the Lobbies and Committee Rooms of the House, in close and familiar Conver- sation with Persons whom he heard daily haranguing against the Government while to every other Gentleman in the Legislature he seemed to be utterly unknown. When the Attorney General's Motion respecting the proposed Court was called up, he took his Seat, as usual, on the Floor of the Assembly and was content to remain there during the Discussion, notwithstandin.r his peisonal Connection with the Measure, and the Observations which it imiTvoid- ably induced. He seemed now, and perfectly of his own Accord, to have placed himself so entirely in opposition to the Government, and to those who supported its Measures in the House, that he was evidently in strict Concert with the most factious popular Declaimers during the Progress of the Measure I speak of, and so muci. o, that Questions which must havebeen.and which are known to have been, prompted by him, were put in Debate to the Attorney General by the Persons 1 allude to — Questions indicating a Want of Confidence in the good I'aith of the Government, and which, it is evident, if Information was his Object he ought to have himself addressed to the Government. I know that his \yhole Manner of Proceeding excited (and it could not do otherwise) m the Mind of the Attorney General, who was going plainly forward in sub- mitting to the Legislature the Proposition of the Government, the stionn-est Disgust at a Course at once unjust and insulting. Mr. Willis's Conduct in^tlie Matter t iroughout was in my Opinion highly indecent and unprovoked utterly subversive of all Respect for his Chaiac.er, and very injuiious to Public' I'eeling. It did, indued, place him in that Light with all respectable Men that had he committed none of the Extravagancies which since have marked his short Career of Public Duty, I must always have regretted that he had b^en apponited to a Seat on the Rench of Justice. The Result of the Discussion in the House of Assembly, coupled with Mr. Willis's subsequent Proceedin.rs have discovered very plainly that he had other Objects than I supjjosed, or were contemplated by the King's Government in sending him to this Counrry All those Meinbers of the Assembly with whom he was in constant Communication opposed the Lstabhshment of a Court of Equity, and it was evident that he was neither surpiised nor disappointed that they did so. There was so clearly some View beyond, in the Connection he had formed, that Members of the Assembly, with whom he had not the slightest Acquaintance, did not nesitate to declare that it was his Wish to defeat tiie Measure, in order to establish, from its I'ailure, a Claim to another Situation which he preferred, and which would place him in the Way of co-operating more effectually with his i>oIitical As- sociates He had been heard, I am told, frequently to state, tiiat Lord Godc- ncli had promised him he should be Cliief Justice if the other failed 'ind spoke much of the Interest he could make for the Situation, and oV the Certainty that the Attorney (Jeneral would not succeed if he (Mr Willis") f?rTh?r?F''' . *'^'' s"l'S'^q"e"t Request to me to forward his Application for that Office shews that he had those Views, and I must say it is almost incredible that any Man should have adopted such Means as he has resorted to for atta:n;ng siicii a Situation as that to which he aspired. In the Assizes which succeeded the last Session of the Legislature, he made an A tack upon the Attorney General, so unfeeling, and so unjust, and so uncalled for, as to excite Suspicion and Disapprobation in every hbnest Mind ; and ; (. I'l ) and the t-xtraor(linar>' Mcasuus l,o fouiiteiiaia-eil wiwv so tvulontlv cakuluwl to give Countenance and Support to tlie wretched Lihellers who liad heen d.s,i,nacmg him by their Praises, and to disturb tlie Peace and good Order of ^oiiety, that from that Moment the Ciiaracter and Designs of Mr.n'illis co.dd no longer be questioned. Some Weeks ago I fbrwar.led to you a lieport. by ti.e Attorney General, of these novel Proceedings; and, as thev were made the Occasion of attempting to depress the Character and Service; of that OfHcer 1 trust an Opinion will be expressed of tliein. In April last, tlie Chief Justice obtained my Leave to go to England. He had been nearly Seventeen Years on the Iknch, without having betn a single Term absent from , us Province. His Health has suffered much from an acute Disease, roni which he hoped to obtain Relief by surgical Aid. For that until aftei Mr. \\ illis;^ Arrival, when the Court contained Two Puisne Judges eflective from dieir Time of Life, and much better able in that Respect to discharge the Duties of the Court than the Judges who had frequently been left to do so in the Absence of the Chief Justice. Mr. Campbell, with Jiother Ju.ige had frequently been left to constitute the Court ; and I did not think 1 could justly refuse him an Indulgence which he solicited for the First Time after so long a Service. It is true a Member of the Bar addressed to me a written Remonstrance against acceding to the Chief Justice's Request of i.eave, setting forth the possible Inconvenience which might arise from his Absence ; but as no particular Ground was pointed out whicli would not eouallv have applied in all other Cases of a Judge being necessarily absent fbr a Time and as the general Objections urged against it would have'applied in like Man- ner to prevent the Chief Justice from leaving the Colony at any future Time, J, ^'';-!, I'o;/'""'^' I '-■o"''! justly do more than place this Remonstrance before the (. uef J.istice. and urge his remaining beyond the apjiroachintr Term if his Health would permit. In his Reply, he stated, that Ids Arrangements were made for embarking at ^ew\ork on the 1st of May, and that it was of con sequence to him to take Advantage of this Season ; that he would still defl-r Ins Journey if he could be at all assured that the State of his Health would permit his attending on the Ijcnch at Easter Term, but that was by no means certain ; and indeed his occasional Absences from the Court in nrecedin.^ lerms, from sudden Attacks of Illness, gave but little Hopes of it. UndtT these C ircumstances I did not fbel myself called upon to revoke the Leave which 1 had granted. In Easter Term. Mr. Sherwood, the Senior Puisne Jud-re and Mr. Wilhs sat and transacted the Business of the Court tiiiou^ their Gowns in the Presence of the Court, and declared that they concurred in Mr. Willis's Opinion, and cmld not continue to transact Business in a Court which they thought illegal. Their Example was not followed by any other Member of the Bar, and Mr. Sherwood continued to proceed in the Term. A Court composed of a single Judge, is, however, not a Tribunal adequate for Purposes of Justice, for Reasons wTiich are given in some of the Documents inclosed. Tiic annual Circuits are ap'proacliing, and in the Term which is to succeed, the Objection of the Chief Justice's Absence must apply with the more Force in point of Law than in the last, and be attended with much greater prad il Incon- venience. Upon receivnig the Report of Mr. Justice Sherwood, uiereforc, I referred it to the Consideration of the Executive Council ; and I called also u'^on the Attorney and vSolicitor General for their Opinions, which were laid before the Council. The Result of these References is transmitted with my Dispatch, No. 27. Though I do not pretend to form a legal Opinion upon the proper Construc- tion of the Act, my Judgment certainly very strongly condemns the Course pursued by Mr. Willis ; and I could not hesitate to adopt the Measure recom- mended by the Council, of removing him, in order to make Way for another Appointment, since I could by no means suft'er those Inconveniences to accrue which Mr. Willis proclaimed from the Bench must follow the Course he was pursuing. To leave the Inhal)itants of this Province for many Months without the Means of administering Justice, in deference to the Opinion of the Junior Judge of the Court, when that Opinion stood opposed, not only to his own previous Proceedings, but to the Opinions of all the preceding Judges, ami to the declared Intention o*' the Legislature, would have been incurring a Respon- sibility which I could not assume. The Crown Officers had, many Alontlis before this Difficulty occurred, (as will be seen by their Opinion transmitted with Dispatch, No. 27,) expressed a Doubt whether a Third Puisne Judge could be appointed without an Alteration of the Statute of l?!)!- ; and the Council therefore recommended, as a Measure of Necessity, that Mr. W^illis should be removed, and another Appointment made, ( l'>l ) niaik', until His Majority's Pleasure he sigiiiHeil. i have accord iiij,'ly removed Mr. Willis, and have appointed Christopher AiexaiuU'r llagernian, Esq., a Uarrister of long Standing at the Provincial Bar, to supply the Vacancy. lint dthoiigh Mr. Willis's Removal has grown out of a Necessity of his own creating, which Necessity may not continue after he is convinced that the Construction given by him to the Statute creating the Court is erroneous, I must beg it to be distinctly understood, that my Objections to his Conduct in this Colony go far beyond any Imputation of Krror in Judgment. It is worthy of Remark, that although he did not feel the Propriety of addressing any Communication of his Intentions to me, as Head of the Government, those Intentions were perfectly well known, as it aflerwards appeared, to many Individuals, from whom, if it was his sincere Desire to avoid creating Public Excitement, he would most certainly have withheld ths Information. He seemed to hold perfectly at nought the Propriety of endeavouring to inform himself of the Grounds on which his Predecessors and his Associates had acted, and of acquiring, by Reference to the Government or its Officers, Infornu'tioii which might have saved him from the Error into which I must think he has fallen. That his Object was in fact to create Excitement, and that of the most mischievous Kind, I have no Doubt : his whole Method of Proceeding proved it. If he thouglit the Court could not legally sit in the last Term, he might surely have communicated to the (iovernment fully anil in Time the Reasons which n.ust prevent his attending. Instead of that, he went to the Court for the mere Purpose of telling the Public, that neithi . he nor the other Judge had any Right to be there, and that, " however awful the Fact," there was no Pro- tection for all that is most valuable in Society. This Speech, or whatever it may be called, was given to the Printers of the most vile and inflammatory Papers, and published verbatim as it was delivered. Again, if Mr. Willis was really sincere in deploring the Excitement which he anticipated, he would not only have been content with delivering his own Opinion, but he would have been happy to find that Mr. Sherwood was prepared to adhere to and act upon the former Construction, and thus assume the Responsibility of preventing a total Obstruction of Public Justice. He would have withdrawn himself, well satisfied that Mr. Sherwood could conscientiously pursue another Course, and hoping that that Course would either be determined to be sustainable, or that the Legislature would interpose to make it so. On the contrary, he shewed an impatient and even passionate Anxiety to drive Mr. Sherwood from his Purpose, as if determined that the Government should incur the Reproach of leaving the Country wiihout a Court to administer Justice. Again, the Announcement from the Bench that the Chief Justice and several other ' rincipal OfHcers of the Colony had forfeited their Ofiices, was surely a most mischievous and unwarrantable Proceeding. If M ^\'illi» conscientiously thought that he could not sit in Court for any judicial Purpose, surely he ought to have thought it much less justifiable to repair thither for the Purpose of proclaiming, quite extra-judicially, that the Chief Justice of the same Court with himself, and other Officeis unconnected with the Court, had for- feited their Offices. It is impossible that he could have thought himself fulfilling any Act of Duty in addressing this Information to the Public from the Bench. It could answer no other End than that which it did accomplish, and for which it seemed intended, — the giving to the discontented and clamorous a new Topic of Abuse against the Government and its Officers, — Abuse utterly unfounded and unjust. Mr. Willis was removed on the 26th of June. Writs had just issued for the Gene il Election of Members of a new Assembly, the Term of Service of the former having expired. The Election tor York was appointed for the 9th Instant ; and in the Interim every Exertion was used by the Two or Three Gentlemen of the Bar to whom Mr. Willis has attached himself, to make his unavoidable Removal from Office the Occasion of creating a popular Ferment, which might prejudice the Elections. To that End a popular Meeting was called in York by the Handbill inclosed. Mr. Baldwin, whose political Character can be readily learned fiom Mr. Gore, many Yeais Lieutenant L I Governor I ( i'i* ) Govcrnoi of this Colony, is Mr. Willis's constant Associate, ami must have known unless Mr. Willis grossly deceived him, that this Removal was not an Act of Lruelty, but was expressly placed on the Footing of Necessity by the Letter written to him, of which a Copy is transmitted. Failing to attract much Attention by the Meeting, which was discounte- nanced by every Gentleman, and almost by every respectable Mechanic of the 1 lace, Accoiints were circulated full of the most shameful Falsehoods ; but \^'^'*^'o .V"''' ^'" "' ''•'^ Manner fail. The Populace were harangued by Mr. Baldwm m inflammatory Language, charging Mr. Huskisson with intcndmg to trample upon the Constitution in his proposed Amendments of the 31 Geo. 3., and every Effort was used to excite a Hatred to this Government, as actuig arbitrarily and tyrannically against Mr. Willis. . f"'! ^^^rce of an Address was got up, in which Mr. Gait and Mr. Baldwin with tlifir\Vives were appointed a Committee to take care of Lady Mary I'lt '«v„- ^ ""'•'^'■stand a Petition is busily circulated, including the Removal of Mr. Willis among a List of Grievances. The utmost Efforts of the Faction with which Mr. Wilhs has chosen to identify himself, failed to exclude the Attorney General from the Assembly. He was returned on the 1 1th after a Contest of Two Days, and Mr. Willis tieparted the same Day for England Had they succeeded in this Instance, the utmost Use would have been made of their Success to influence the other Elections against the Government The Attempt was at least exceedingly mischievous. At the Election for York the Candidate opposed to the Attorney General read from the Hustiii^s ■, li'teral rranscript of the Writ discharging Mr. Willis from his Office, in the Hone of exciting a Feeling of Irritation among the Multitude. This Document was handed from the Crowd, to the Candidate ■ who read it, by Mr. Collins the Editor of a scandalous Newspaper here. It must have been fiirnished by Mr. W 1 IS, and is stated to have been in the Handwriting of his Clerk Ihelroceedingslhave detailed have given rise to very flagitious Libels upon the Administration of .In tice, and upon the Government for which the Aiitliors of them shall be prosecuted in the ordinary Manner. The same Journals, very much to the Discredit of Mr. Willis, are filled with Coinnien- dations of his Character and Conduct ; but these Productions, and the Authors of them, ai-e so utterly contemptible that I would not notice them, if it were not that Mr. \V illis seems to attach a strange Importance to their Stinnoit If 1 could fancy Statements or Opinions, drawn from such a Source, could have Influence any where, I should take the Trouble of transmitting some Numbers of these Papers, that it might be seen in what Terms they hold up each other A /"»''c Reprobation as unprincipled and worthless Miscreants wholly destitute of 1 ruth. " Regretting the Injuries which Mr. Willis's Misconduct has entailed upon Ills l 1- 1 I id ac-coidinRly advert to it Once oi Twice in Conversations wliicli I had the Honour t() have with Lord Hathiirst ; and I think I also spoke on the Sub- ject to Mr. Wihnot Morton. Nothin.,r was decided, however; and indeed, as It was evident that the prelnninary Measures were more properly to he taken in the LoJonv. nothing more was expected to be done than to obtain the Upinion .' '• King's Government as to the Footing upon which the Court might besi • .? established. It occurred to me that it might be useful and satisfactory t. ascertain, while I was in England, what Income it would be necessary for the Provuice to provide, in order to induce a i)ractising Barrister m the Court of Chancery, of respectable Character, and who had had con- s-derable Practice in that Court, to come to Upper Canada and organize a Court of Emnty. and to preside in it, if not for Life, at least for a certain Number ot Years ; and in my Wish to arrive at some specific Information. I asked Mr. .Stephen, Counsel to the Colonial Department, who had practised in the Court of Chancery, whether he thought a Person of undoubted Qualification as to Character and Experience would be induced to come out, if the Legis- laure could be induced to provide a Salary of .£'2,000 a Year, and a lletirement after I en Years Residence. He was good enough to make Enquiries for mc. and to write to me a Note, which I have still by me, communicating the Kesuft of Ins Enquiries, which was rather encouraging. The whole Thine was hypothetical. My Meaning was merely to ascertain how tiie Office might be hlled, supposing it were to be created, and supposing an adequate Provision to be made for it ; and I cannot have a Shadow of Doubt that it was clearly so iinderstood by Mr. Stephen. I think I brought out no Communication whatever from the Colonial Department to his Excellency on the Subject : nor did I ever .ear more of it until the Arrival of the Intelligence, in July last, that Mr.^\llhs had been appointed a Judge of the Court of King's Bench in Upper Canada, upon a supposed Vacancy, and with the Understanding, that if any Court of Equity should be established in the Province, he was to presi.le in It either as Master of the Rolls or Vice-chancellor. I imagined at the Time, and I have now Reason to think it most probable, that this conditional Appoint- "!? ^f "c. "f ^^"^ ,".' ," Sf'^'it Measure from the Conversations 1 have had with Mr. Stephen, which were precisely of the Kind and for the Purpose I nave mentioned. ^ His Excellency will call to Mind, that in the Session of ISifi he had in general lerms called the Attention of the Legislature to the Expediency of pioviding an equitable Jurisdiction; and that, although the Legislature pledged themselves that it should engage their Attention,"tlie Suggestion was not acted upon, probably from an Impression that the State of tJie Revenue did " a/^'w^i',-""^'^ ''''\"''^ °^' ^ '"it'^b'^ Provision being made for the Court. Mr Willis arrived m August or September last, when I was absent on the Circuit. On my Return I saw him, and it was on all Accounts as much my Desire as I considered it my Duty, to pay him every Attention, as a Member of the same Profession and a Public O^icer in the same Colony; and because my Situation here, both under the Governmeht and in the Assembly, seemed fnr''i"i"'M '%T'^ t'lan others, the Way of forwarding one of the Objects for which Mr. W.lhs had come out, I quite felt it incumbent upon me tb do all in my Power towards the Fulfilment of the Expectations he had been allowed to entertain, ♦hii''\'^-''?'^''>.T"^'^'''"'l"?^^°"''^'''^t'«"^ and Appointments with him on the Subject of the proposed equitable Jurisdiction; and being myself wholly unexperienced in Chancery Proceedings, it was my Wish to acmiire such Infor- mation as might enable me to submit a Proposition to tiie Assembly in a specific Shape, if It should become necessary. That it would be found necessary was l»!i . .1 ^ r^ r'" I'"P'"es^'on, and always had been; but Mr. Willis had been Sii.l. "^ T^'r^"''^' ""''. ''^'' '^''"^^ "^" ""'^"^ t''e I'ersuasion that the Con- H. c ^ / ? ^?"". ''°"''^ ^^ ""'' ^""^ ^^'^°l'y LMiianating from the Crown. ^!J:Tf .'"^^ ' ^-'^^ "°^ ^"'*'"S it convenient to incur longer Delay in thati^u*^.'"ir^'"Tll''"'',''. •'" ''^^^ '"^'^ ^^"Sland with the positive Assurance C\.irt wn, M r°" "T. '"1" ' ^'"^ 'iPPeared to be so fully persuaded that the inH thP nil M^ ^T^'* u^' Commission under the Great Seal of Great Britain, and the Details left to himself to arrange, in conjunction with the Govern- ment, ( t«7 ) inent, tliat his Object in consulting ,w seorneil nRrolv that iio nniriii I... better propan.cl (i.r settling tho D.ta.ls. when tin- Arnval of his {•..mmissi-.n snouki cnal)le hini to do so. I ha.l always thoujrhf that an Act of the LcgislaltM-e. or of the Imperial larhamcnt wu.il.l be proper, >t not indispensable, for creating the proposed (onrt o hqnitv; and I expressed my Surprise to Mr. Willis that it had not appeared so in hngland ; but I was assured by him that it was otherwise understood and settled, and he, no doubt, thought so. As Mr. Willis was in daily LxpectatioM ot his Connnission from K ngland when the Legislature met in January last. It would neither have been proper nor considerate in me to have nitroduced any Measure into the Legislature for creating the proposed Court; because, had such a Proposition not been more favoiuablv received than in the preceding Year, no other End would have been answered by it than the thrown.g Doubts upon the SMiticieucv of the rominission he was expecting, by an Attempt to procure an Act -f "the Legislature. Some Days after the Session net, however, his Lxcellency received the Dispatch from Mr. H,|skisson, dated '.'.0th November 1,S'J7, iu which it is stated, that the Law Officers of the Crown in England had given it as their Opinion, that here was "considerable Doubt whether ILs Majesty lawfully could by Letters ;| I atent under the CJreat Seal, without the Intervention of .'arliament or of the Local Legislature create any new .Judge in Equity in Upper Canada." This Dispatch required that the Opinions of the Ju.lges and the Ctowu Ofhcers here, upon .several Modes which were si.ggesied in it, of creating the desired equitable .furisd.clion. should he called ti,r and subnutted to the Legislature. Ihis was done ; and the .several Reports were printed (br the House of A.ssembly. I transmit a printed Copy of them wilh this Uenort You know at what lime they were transmitted by his Excellency to the Legislature, and the Message with which thev were accompanie.l." I was desirous of obtaining as soon as possible the Sense of tiie House of Asseml)lv upon the Me. sure generally j and, with that \-iew, I moved for a Lommittee of the who e House upon the Message, and named the Monday after its'lVansmis- sion. W hen that Day came, the House declined entering upon the C^nestion, because the Papers had not yet been printed. As soon ts thev were printed I moved the Committee again ; but a further Delay was insisted 'upon, in order that lime might be given for examining and considering the Reports; and two or three other Motions for an early Consideration of the Subject were alike ineffectual. It was evident that the House had no particular Desire to enter thi.s Session into the Question; and, in the next place, I need scarcely remark, how d.rticult it was. and :. many Cases imjlossibie. to fbrce Zti Discussion and to a Decision, during the last .Session, or indeed any Session of the last 1 arliament. the most ordinary and necessary Measures. At length on the nth of March I think. I succeeded in getting it into Committee, when ? explained at some Leng.' .ne several Occasions which had arisen fbr the Exercise of an equitable Jurisdiction, and declaring that, without any Refer- ence to the Opinions which had been expressed by .rthers. or even by inyself as Attorney (jeneral, my Desire was to obtain fiom the House, in tlie'ffrst nlace an Expression of their Opinion as to the Expediency of providing, dmin.r ,hj present Session, for the Erection of an equitable Jurisdiction, aiul^ in the^next place, upon what tooting they considered it most expedient to establish such a Jurisdiction. 1 further nated, that I had proceeded some Length in pre- paring a Bill in which . had endeavoured to provide fbr the Court in the Matiner which seemed to have been originally contemplated by the Secretary of Sate; and that I thought it right, aiul but just, as it concerned the Gentleman who had come to this Country with the Expectation that a Court would be so established, to submit the Measure fairly ti the House upon that Looting. Ihe only Measure, therefore, which I hat! prepared was ; this, heeii presseil ii|)''"'"i'-- ArranBi,,,™, i„ fi.K s„y,'i'," '■'"'i''''^"'}' ■; »»"'• llii't " "i'li'lai- Measure liu l„.f„ ;„|o„te,l in Vuv, .>C()tia ; and that iiru er a rcrpiit A..» ,.«' i>,..i' . ..• """I'leii in .\ova Leon intro.luce.l i L ( .r of .^ 1 , '"r'F "l ■^>^-"' ^^■'•y .^j""'"'- I'a* J HIS lAttii will be (lelivfied to von by .Joiin Wain..!.. \\llll= i.- u I)isj)attli oltiie <)ti ments were made Court. ^M"il l^'stj in the san.Jl)is|,aU.|ul.onecessary'ArranI^' ■cspeetn,. the Salur.es to he /.llowe.l ,., the jlufges o? ,1!o M) sir 1'. Maitliind, K.C.U. Sir. &c. ^c. Sir, TilE Question of the T'rePti,,.. ..f , /• ^ • P''",'''"^' ^•l■'^^■^ 2>"' NovtiiilKr ]H2T. observing ll.ai ,|,c Ti b f S- " f ?S! K ^""■' ""!"' '"' ".' ''" ""ernor. exercised, as in the Co rt Af' • 5 " ""l'^ V'"^^'"^ Jurisdietion might he be proneri; framed "fi^-'-'the^FstXl'." "". T""'"''"' °^' ""^ ^'''^ ^'"^'i '"ay the In/brmi»tion and Ass tant o he / I'l' "'J"''''*'^- ? Jurisdiction. For Assistance of the Legislature, it will be proper to call upon ( HI ) upon I Ik- Attorney anil Solicitor (iciuial, aii IS no general Inclination in Enj{land for a total S-paration of the Courts of Law and Kquity. As long Usage in England allows not only distinct Courts of Kciuity, hut also sanctions the Exercise of legal and equitaiile Towers by the same Judges, :>f) conclusive Argument can be drawn from such Usage to settle the present Question} we shall therefore resort to tlie Consideration of l'ul)iic Convenienr m this Province, as the only proper Criterion by which we should he goveriu ,i in forming our Opinion. If a separate Tribunal be erected for tiie Admiiiistrntion of Equity in this Irovince, it clearly ap|)ears to be the I'leasiiie of the King's (Jovernment that One of the Judges of the Superior Court of Law in this Country must preside "1, tl'e new Jurisdiction. Such an Arrangement, we think, wouhl be productive of 1 ubhc Detriment, because there is no Superahumlance of Jud.'es in the Superior Court, riie proposed Abstraction of One of its Members would necessarily lessen the existing Elliciency of the Court, ami the Civil and Criminal Jurisprudence of the Country would not receive the requisite Attention. An mdependent Tribunal, possessing an eijuitable Jurisdiction over this lenei Pre and Energies of any Oik; to the Considerations and extensive Province, would require alf the Time Individual, and leave him no Leisure to attend Determinations of Suits at Law. The Situation of One of the Judges of the Superior Court of Li-w in this Province would in that Event become a perfect Sinecure ; and even the Iddi tion of another Judge to the Court would in fact produce no accumulated Advantages to the Public. If all the Judges of the Superior Court of Law were made Judges in Eduitv with competent Authority to any One or more of them to hold a Court of' Lquity, with dehned Powers and for particular Purposes, at certain Periods district from the existing Law Terms, we incline to think the whole Public liiisiness would be accomplished with greater Facility. The Judges might make such Arrangements as to afford mutual Assistince to each other in both Descriptions of Courts. There can be no conclusive Objection to such a Measure : Law and Equity arc not founded in discordant or incompatible Priii ,ples; nor is it indispensably necessary for KiiowIlhItl. of either, to separate and contrast the Two. The general DeHnition of Equity is the Soul and Spirit of all Laws. Hoth Kules of Action have their Origin in the immutable Principles of natural Justice tquity essentially assists in the Interpretation and Aiiplicati..,, of Law and occasionally supplies the Defects of its general Regulations. The Administri tion of both Law and Equity have been intrusted to the same Tribunal under all the various I-o-ms ot Government which have so long been known in E^urone • and It is undoubtedly true, that Ignorance of the Common Law is nearly allied to Incompetency for the true Application of Equity. Men who have spent their Lives in the continual Study and Practice of the lurisprudonce of their Country are the most fit Persons to compose any Tril. ual to which the Con Btitution attaches the Power of deciding Disputes between the Members of the Community. At the same Time it must be admitted, that constant Practice and intimate knowledge of any particular Part of the general Law of the Land great.y facilitates the Performance of the peculiar Duties of that Department where such Part of the Law forms the Rules of Adjudication. The .fud.re in Equity, who V k.s no Share in Proceedings at Common Law, would iindoubt- edly be capable of performing more Business in any given Period than the Judge whose Attention is alternately divided between Common Lavv and En nit v \Ve incline, therefore, to think, that if a distinct Court of Equity, possess i/a general Jurisdiction, were ere. -d in this Colony, and a siaratr J Xe appointed to preside, without les.. ng the NumberV.f Judges fS iha pSe in the Superior Court of Law, greater Advantages would accrue to the Public than can be reasonably expected from any other equitable Establisiiment. ■ On lie Oil On the otiie. iiiiikI, if ( > ,f of tin- Jml^t'-s <»/' llii' Sii|)i'iior Court ul' Lav, must of iK'tTNHit) he si'Uctcil till a .IiiiJ(Xf (i( an iniii-|ion(leiit and ncneral .luns- (lictiiiii in MattiTs of i;(|uity. -.vm incline to think that tin- mou' fhpble .\ii-thi..t Ht the pri'sent .liinrtiirf woiihl lu- to invest uH the .Imljics of the Superior Court of Law with i'(iuital)U' I'owits, liniiteil to spt'citic Obii-cts; th Mil the Legislature migh ubstitiite such other .S\ .tein as in their Wisdom shoidd be deemed more tligihl" Snould the Conimon Law Judges find, on Lxperiment, that the additional Duties now proposed would be too burthensome, they might express li Dissent to their Continuance; and the Justice of till! Legislature would ol course recognize their llight to be relieved, by some other Appointment. (Signed) Willia.m Campukli,. C.J. y.rk. lUtl, KdTuary ms. 1^^^,,., |._ SlIllUWOOl., J. Letter from Mr. Justice Willis to Major Hillier, with Report on the same Subjects Sil, York, Upper C«iiiida.iili Feb. 1 82S. Permit me to acknowledge your Letter of Yesterday, accompanying a Copy of a Dispatch from Mr. Secretary Iluskisson, for which I have to request you will make my most respectful Acknowledgments to his Excellency the Lieu- tenant Governor. Under the peculiar Circumstances in which I am placed, I have ventured to inclose a separate Report on the Subject of the Dispatch, for the Information of his Excellency. A Copy of this Report shall be trans- mitted to the other Judges when I am called upon by them for my Opinion ; and I presume to hope that his Excellency will release me (if it can be done with Propriety) from any further Expression of my Sentiments in this ALitttr. Perliajis I may be excused for adding, that when the Office of Vice Chancellor of England was first created, the Salary attached to it (.sf5,00U per Annum) was, I beI'Vve, al least equal vo that of the Chief Justice of the Court of King's Bench. I have the Honour to remain, Your very obedient Servant, Miijor llillier, Uto. (Signed) JoHN Walpole Wim.is. Being in scmic LVgrce interested in the Subject on which my Opinion, together with that of the other Judges and the Attorney and Solicitor General of this Province, is now called for, 1 hope I may be excused from joining in atiy general Report, and permitted merely to express my entire Accurdanc.c with the Sentiments publicly delivered by the present Lord Chancellor when Attorney General, and repeated by him when Master of the Rolls, in uie British House of Commons, in the recent Discussions respecting the Court of Chancery of England. In his' Speech of the lUth Miy 18'2(j he said, " If you unite the Two " Systems, Common Law and Equity, and compel the same Judge to admi- *' nister Law one Day and F^quity the next, is i' probable that he will jiossess " the same Knowledge and lui'ormation as those Judges who are exclusively ' confine^l to the Administration of the Laws in the Law Courts, or as those " who now preside solely in Courts of Eipiity? It is well known that the " Exchequer Court has hot' \ Jurisdiction in Law and in Equity. It is as xccU " known, that any Suitor wi.o is desirous of having a Question of Law decided " will never go to the Court of Exchc(iuer • he will prefer the C'curt of Kin;-'s " Bench. In a similar Manner, every body who has an Equity Case to be " decided will go to 'he Court of Cliancery in preference to the Court of " Exchequer. The Inconvenience oi uiiithig these Tiio Si/stems in the Court " of Exclie(nier was so pdpablc and ag jxreut, that sunie i'ime ago a Bill was " brought in to separate tli>T Two Jurisdictions, in consequence of that Bill " the Equity Jurisdiction of the Court of Exchequer is mxv dhtincl tiom the " Law m ■If if ( ll..l. ) decided by tlic Lonl Chief s dispensed i)y tiic other Judges " Law Jurisdiction ; the Equity Cases being " Baron, while tlio Common Law Jurisdiction " in the Court below him. I have made these few Observations, and have " appealed to these well-known Facts, in order to shew that the Kc|uity Juris- " diction of the Country must not only exist, but that it must exist in separate '• Courts, and that we shall derive no Advantage from attempting any Change " in it." On the 28th February 1827 Sir John Copley (then promoted to the Office of Master of the Rolls) spoke on the same Subject as follows : " I have " never found anyone Individual, on whose Judgment 1 could place the least " Reliance, who attempted to find Fault with that System of Jurisprudence " which distinguishes the Court of Chancery from the other Courts of Civil " and Criminal Law, and which is with us called Equity. I never recollect any " one who ventured to assert that the Jurisdiction of that Court could be " dispensed with ; that what is called Equity could ever be administered by the " Courts of Lr-v; or th&t it could be afforded by any other Means than by a distinct " and different Tribunal, limited to a peculiar Object. I yield to no Man in my " Admiration of the Simplicity of the Proceedings of the Courts of Law. I have " been brought up in early Prejudices in favour of that Simplicity • but it is in " consequence of the Separation of the Business of the Courts of Law from " that which should be conducted in Courts of Equity, that the Simplicity of " the former has been preserved." I shall only observe, that these Stiitcments are in strict Conformity with the Opinion of the Commissioners, (Lord Eldon, Lord Gifford, Sir John Leach, then Vice Chancellor and now Master of the Rolls, Sir Charles Wetherell, Master Cox, Sir Anthony Hart, the present Chancellor of Leiand, ')octor Lushington, M. P., Mailer Courtenay, ALP., Mr. Smyth, M. P., ■'■ Meriva!', Sir N. C. Tindal, the pieseiit Solicitor General, and Mr. Beai. s,) of whom it .vas said by Lord Lyndhurst, " That " Persons better quaiifieil for the Task entrusted to them (namely, to enquire " what Luprovement could be made in the Practice of the Court of Chancery, " and what Part of the Business could be withdraw!) from that Court and " committed to the Jurisdiction of any other,) could not be found in the " Com. try." On their Report, the Discussions I have alluded to look place in the House of Commons ; and the Statements I have quoted were made by Lord Lyndhurst, then Sir John Copley, without th Mr being attempted to be refuted or contradicted. (Signed) John Walpole WiLi,rs, J. Yoik, Upper Canadn, Sili February 1828. Attorney General's Report on the same Subject, Sir, Vork, I Glh February 1828. In obedieme to the Commands of his Excellency the Lieutenant Governor, I have considered the Dispatch of the Right Honourable the Secretary of State for the Colonies, on the Subject of creating an equitable Jurisdiction in this Province ; and I have the Honour to report that, in my View of the Questioii, the Choice of the Alternatives suggested in the Dispatch depends very much upon the Powers which it nsiiy be thought expedient to confer on the proposed Court. If it were decided that a Court of Equity should be erected in this Province, posses jing all those Powers of superintending, disposing, and controlling, which are exercised by the Lord Chancellor in England, and which can scarcely be said to h\j defined or Jimited, I should certainly not think that the safe or con- venient Exercise of such Power > could be adequately provided for in any other Manner than by committing them (under the Lieutenant Governor as Chan- cellor) to a Judge in Equity, whose previous Studies and Experience shou'd have qualified him for the Discharge of Duties at once ccmprehensive and peculiar; and who, unembarrassed by the Necessity of attending in the Com- mon Law Courts, might afford that almost constant Attention to the Admi- nistraiion of Equity which the very Nature of the specific Relief required in many Cases renders indispensable. I do not imagine that any System could be devised under which the Cuurt of King's Bench could, consistently with their other Duties, exercise Powers so ( 14.^ ) so various anil extensive, and in many Cases so minute i?i their Application, as belong to tlu Court ofCiiancery in Engianil. That they niigiit be enabled in most, if not in all Cases actually depending before them, to apply the Principles of Equity in their Administration of the Law, I can easily conceive ; because in most Countries Tribunals exist where Justice is admiristered according to such a System. If the proposed Court of Equity is to be in Upper Canada what the Court of Chancery is in England, I am of Opinion that the nearest Approach we can make to an English Lord Chancellor in all Respects the better. I do not perceive clearly, on reading the Dispatch, whether the giving equitable Powers to the Court of King's Bench is suggested as preferable to the simple Proposition of having a Court of Equity wholly distinct, with a Judge in Equity altogether unconnected with the Connnon Law Court ; or whether it is rather recommended as a System more proper (as I think it is on several Accounts) than the commit ng an independent equitable Jurisdiction to One of the Judges of the Common Law Court. If it is to be understood in the former Sense, the Opinion of the Crown Officers in England may be taken to have been expressed upon the principal Point; n:inely, whether it would be more expedient to introduce into this Province a Court of Chancery, with all its ordinary and extraordinary Powers, or to give to the Court of King's Bench, in certain defined Cases, the Powers of a Court of Equity, with the general Power of administering Law with Equity, by admitting all Objections of Fraud, Accident, unconscionable Bar- gains, &c., as fully as a Court of Equity could do in Ciises litigated before them. I am inclined to concur in the Opinion intimatei- in the Dispatch, and to think the latter the more prudent Experiment. The Common Law Jurisdiction of the Cliancellor might very naturally and readily be vested in the Court of King's Bench ; and as tliis would include the Power to cancel Letters Patent, when adjudged void upon a Pro- ceeding of Scire facias to repeal them, a Remedy would be given which is as nMich wanted in this Colony as any, perhaps, which a Court of Chancery would open to us. Provision might be made for foreclosing and redeeming Mortgages, for the Recovery of Legacies, the Recovery of Dower, the compelling Partners, Executors, and Trustees to account, and for various other Matters which are of absolute Necessity, and for Want of proper Remedies in which Cases our present Svstem of Jurisprudence is palpably defective. A distinct Office and distinct Officers might be assigned to the Court of King's Bench for some of tnese Purposes. I anticipate some Difficulty in forming a satisfactory Opinion^ as to the Propriety of giving Powers in certain Cases, which shall take Ett'ect upon Transactions passed and Contracts entered into at a Time when the Resort to such Powers could not have been coi!tem|)lated by the Parties. I would instance the Case of Mortgages, but forbear to enter into the Con- siderations on this Head, which have presented themselves to my Mind, because, without more Explanation than I have now Leisure to offer, I should perhaps fail to make myself clearly understood. Upon the System last spoken of, much of the Power of the Chancellor, which he is considered to exercise in his ordinary legal Court, might, 1 think, conveniently be allowed to remain with the Lieutenant Goverror, in whom it is now vested, with the Custody of the Great Seal ; and Prov.sion might be made to render its Exercise more easy and effectual. 1 allude to the Cases of Infants, Lunatics, and others^ of that Descrip- tion, and to the issuing of certain necessary Writs under the Great Seal. Whether the various Ends which the Court of Chancery attains by compulsory Process, such a:. Discoveries by Oath, enforcing the Execution of Trusts, the Convevance and Re-conveyance of Property, the Performance of natural and morarObligation, the specific Execution of Contracts, and the immediate Interposition by Injunctions, should, with or without Restriction, be provided for, and how, is, perhaps, the Point most difficult to determine. it is in connexion with this last Class of Cases that the Court oi Chancery in England has principally to encoi-nter the Objections raised to it as a Tribunal imposing harassing Delays ; sometimes apparently acting upon no known oi ^ " o J Q ^ certaui ( i4<^ ) spositioii certain Rules, and assnmin^r a Tower o the Persons of Men. directed onlv 1 ' Judge. uTcciea oniy bj .„.. v.ui.ai;ieiice anu uiscretion of tlie ^. .'^„*<'.^"ribnte as much of the Dissatisfaction which lias been exnresse.l on this Subject as can fairly be attributed to Want of sound CrrnsidSion.n to urjreasonab le IVo udice. still it is necessary to give their due "v^ StrFac which are admitted on a I Hands: and I confess IshnnLlkw ^ . , ^ here. unoJ!a,u all those Powers wl.icl/the cSoVo.a'c y , ^s^ ':S::^ teys-;;:'4;;ittrh;^i-?;-- Machniery of a System which has been thouplu tn l.o . ?,<• 7^' if X think It a safer txperiment to endeavour to dofin^ ...,,1 t,. i- t • Comparison with Course, every I a™ inclined to .M,,.,',Cr„'i,K,, -a^/Z aTc ^y:' Kl'?"'' might be so contrived as to leave less Grn.m,1 V^ o^;! i' 't ^ ^>^'^'" frc-n its Defects than there would be to anSL Fv^? f '"'^ Inconvenience gross of all the Powers and Jurislrio:°onire'So:r^"'cWerv^'°''^"" '" I have the Honour to be, Sir, Major Hillier. &c. &c. &c. ^°"'' "'''* ''^''^'1%'}' ^'^^^^ S^^'^ant, (Signed) JoH.v B. Robinson. . Report by the Solicitor General, recommended in the Disoatch „f tl,,rr L u'^''''''' .V"'""'"' »* for the AJmini.,tr..fo„ of"™e 5-o ZiT at eas of °LtTf"f,t ''',"''""" for But should tlie present State of the Colony not seem to call for f Hp V.ar ■ This Advantage would be peculiarly felt, should the LeL'isiatnrP if nnv r. . into Operation the extended Jurisdiction ^"Hicient to bring :s/s s /r?:^ Self i^ -- -- S-'^ -"-" draw up all Rules, Orders, and Decrees, and fif all Bit Answers PIph"-'''' and other Proceedings in the Cause, no^ belonging L the mSn 'offi' e "^'' It IS my Opinion, though I give it with much Diffidence that the Wrfnp. should be examined viva voce by the Counsel for tlS respi ive Parti^ pffh Side should serve aCopy o^dlBl^t^et an^oUi^^pSr oT^^ to be filed in Court, at or before thn Tim„ «<■ «i:„„ .u .-^^ °'^ ^I^P^'^ to be, filed in Court, at or beibi. the Time of^-f^ig'th;;;;: "if l.;:!;,^: t'Srl' ^r-""" L-v. Thif would save Expe„" e! with the Practice in , „. ^.w..,.., and materially accelerate the Proceedings. pence, J'hc 9 ( HS J The Subjects particularly calling for the Interference of an equitable Tri- bunal are, in my Opinion, Trusts, fraudulent Conveyances, specific Per- formances, Wills, Mortgages, and Partnerships, and the Guardianship of the Property and the Protection of the Persons of Infants, Idiots, Lunatics, and Married Women. All which is respectfully submitted, (Signed) H. J. Boulton, Solicitor General. Inclosure, No. 3. Drafl of an Act to confirm and establish an efficient Court of Equity in the Province of Upper Canada. — By Mr. Willis. Whereas by the First Act of the First Parliament of this Province it is, among other Things, enacted, that thenceforth, in Matters of Controversy relative to Property and Civil Rights, Resort should be had to the Laws of England as a Rule for the Decision of the sane : And whereas such Lavvs cannot be resorted to in this Province with full and complete Effect, without the efficient Operation of a Court of Equity ; be it therefore enacted, &c., That tl re be henceforth confirmed, constituted, and established, and there is hereby, &c. an efficient and operative Court of Equity in and for this Province, to be called and known by the Style and Name of His Majesty's High Court of Chancery (or Supreme Court of Equity) for the Province of Upper Canada, which said Court it is hereby declared is and shall be a Court of substantive and original Jurisdiction, and shall and may possess and be armed with all such Powers and Authorities in this Province, (except with regard to the Bankrupt Law,) and may and shall entertain Jurisdiction and hold Plea, compel Dis- covery, and afford Relief in all such Cases of Accident, Mistake in all such Mortgage Transactions, and all other Matters of Account, and in all such Cases of Fraud, Contracts, Trusts, Guardianship of the Persons and Property of Infants, and of Per.sow* o//«,sawe M/wf/ or who are incompetent to conduct their own Affairs, and in all other and the like Cases, (except those relative to Bankrupts,) as the said High Court of Chancery, Court of Exchequer, as a Court of Equity, or any other Court of Equity whatsoeve. in England, under and by virtue of the Prerogative of the Crown, or of any Usage or Custom, or of any British Statute or Statutes now in force in England, can, may, or do now entertain, hold, and exercise Jurisdiction, and with all such and the like Powers as are or may be now used and exercised in all or any of such Courts of Equity in England for enforcing the Process and giving Effect to the Orders, Judg- ments, and Decrees thereof; and that the Governor, Lieutenant Governor, or such Person or Persons for the Time being to whom the Great Seal now or hereafter to be used for this Province shall, by or by the Order and Direction or under the Authority of His Majesty, be from Time to Tim*; delivered or entrusted for safe Custody and the Public Purposes of this Province, shall and may have and enjoy all such and the like Powers, Prerogatives, Privileges, and Advantages as are now attached or incident to, or in any wise appertain and belong to the Custody of the Great Seal of the United Kingdom of Great Britain and Ireland, or now are or may be used, exercised, or enjoyed by the Lord High Chancellor of Great Britain, or the Person or Persons entrusted with the Custody thereof. And for the more active and efficient Operation and Dispatch of Business of the said Court hereby established, be it further I icted, That it shall and may be lawful for His present Majesty, His Heirs ...id Successors, to nominate, constitute, and appoint, or by Warrant under His Hand to order and direct, that a proper Person, being an English Barrister at Law of not loss than Ten Years standing at the least, shall be nominated, con- stituted, and appointed an additional Judge of the said Court hereby established, by the Name and Style and Title of Master of the Rolls of Upper Canada, with the same Powers, &c. in this Province as belong to the Master of the Rolls in England, ■ ( 14!( ) Englaiul in donsequence <.( I.is OHice. by Prescript, Statute, Custom. „r i,c. ■ Aiui hirtlier. that it shall ami may be lawful for the Person or Persons holding the Great beal from l.me to Time to delegate and transmit, for the morl eflectual and speedy Discharge of the Business of the said Court, all such 1 owers, &c. as belong or are incident to the Custody of the Great Seal, and are not possessed by the said Master of the Rolls. .•« m ^it- Section 2. Precedence of the Master of the Rolls. Sections. Officers, as in Statement, to be appointed by the Chancellor, with the Exception of the Secretary and the Usher of the Court. Offices'"" *■ ^''''"'^ ^"'" ^''''' ^^'"^'"' "^' **'*' '^""'''' '■'"'^ Officers, &c. Court and Section.';. Investment of Suit., s' Money on Government Security. Section 0. Practice and l which :he Superior Court of the Province if placS bv hS"'"™" a.ul unlooked-for I'roceedu.gs had rendered the Dday pjS ' ""^ I have the Honour to be, Sir, The Hon. J. W. Willis, E»q. (dc. &c. &c. Your most obedient humble Servant, (Signed) , Geohok Hillikk. ■ ( 153 ) ill Paut 11. No. 30. Civil Servants. LETTER from Sir Peregrine Maitlano to the Right Ilonoiirnble William HUSKISSON, M. P. &c. &c. &c. """> York, I'piior Caiiadii, 'Jlsl.liilv IH'.'K. I PARTICULARLY regret, that after the Report whicli 1 liave btxMi constrained to make to you of tlie Coiuluct of Mr. Willis, late a Puisne Juil^e in this }'ro- vincc, and the voluminous Documents to which it was necessary I should on that Occasion request your Attention, I should be still further obliged to trouble you with the aniic ;ed Correspondence, whicli relates to Subjects purely iier- sonal, and of little or no Public Importance ; but as Mr. Willis ma.le an otHcial Request that I would lav before you this Correspondence, and afterwards trans- mitted to me, as you will perceive, an imperfect Copy for that Purjiose, I have deemed it right, for Reasons which will appear obvious, to send an exact Copv of the whole, which has been prepared with all the Dispatch that a due Attention to Matters of more Importance would admit of. 1 beg leave to adil, that I do not feel it necessary to trouble you with any further Explanations of the Matters complained of by Mr. Willis, tlian those which have been rendered to me by the Persons to whom his several Allega- tions have reference, and which appear to me to shew clearly enouL'h the Nature and Motives of Mr. W^illis's Proceedings. „,. „. , „ I liave the Honour to be, &c. The H,6ht "-'• n • H-Xi-n. M. P. (Signed) P. Ma.TLAND. Sir, \ and as nothing can be more necessary for the due Administration of Justice, than that the Source from which all Public Prosecutions must originate should be distinctly under- stood, I do not think J. should honestly discharge the Duties of my Office, did I not respectfully submit this Matter to your Excellency's Notice. I have the Honour to be, To the Lieut. Gov. of Upper Canada, yj,- Your most obedient and very humble Servant, (Signed) John Wah-ole Willis. &c. &c. &c. S""> 1"''e Cottage (Queeristown), 14th April 1828. I AM commanded by the Lieutenant Governor to acknowledge the Receipt of your Communication of the 12tli Instant, addressed to his Excellency and to acquaint you, that he has directed the same to be referred to the Attorney General for the necessary Explanation. I have the Honour to be, Sir, Your most obedient humble Servant, (Sigh. 1; G. IIiLLiEK. Q 4 The Hon. Mr. Justice Willis, &c.&c. &c. Ill ( 154 ) „. Yi>rk, ITpper CanmlH. 1 tlli Njinl I8'>. iA.v sorry to have Occasion aKa.i. u. appeal for a Decision respecting the Duties of tfie Attorney (ieneral of this Province, who mm- repuaiutes (as I un.k.rstaml him) what he stated on Friday last, namely that Cr.mmal IW cutions in tins Province are, as in Kngland open to the Bar; and he has this Dav in open Court further asserted, that as Ills Majesty's Attorney General for this' Province, he is answerahle for his Conduct in his legaU apacity. not to any of His Majesty's Judges of this Colony, but only to the Kings Govern- ment. If this-^be so, the Question is, whether the Attorney General (who is not only a Hurrister, but also a ruAcnsiNO Attornkv and Officer of the Court,) or the Judge who prcsi.les, is the Superior? I had Occasion to notice the L'reater Mildness of the Criuiinal Law of England, and the Administration of it as it now stands, to that which is admitted into this Province, (which is what it was in England in l?!)'^) and 1 lOw call on your Excellency to observe the Improvements since that Period, and particularly those made recently by the Right Honourable the present Secretary of btate for the Home Uepart- " A "sense of the Duty attached to the Dignity of my Office compels me, how- ever reluctantly, to add, that the Language of the Attorney General was such that I could only tolerate from his being an Olhcer of Government, and from my Desire, on that Account, not to obstruct the Public Business. In this t:onfroveisy I certainly disclaim all personal Feeling. I ilo not, nor ca:^ I ever, condescend to entert:;iin it in am, Public Meamr-e ; but the Crisis has now arrived at which it must be determined how Criminal Prosecutions liac are to be conducted, and how far the Law Officers of the Crown arc answerable to the Judges of this Province. . u . „ 1 have the Honour to be, &c. Tc the Lieut. Governor of Upper Canada. (Signed) JoHN WaLPOI.E WiLLIS. &c. «cc. &c. Government House, 17th April 1828. I AM commanded by the Lieutenant Governor to acknowledge the Receipt of your Letter of the 14th Instant, and to acquaint you that it has been referred to the Attorney General for Explanation. I have the Honour to be, &c. The Hon. Mr. Justice Willis. (Signed) G. HiLLIEK. &c. &c. «tc. fffl!" York, Upper Canada. 22d May 1828. I BEG most respectfully to call ycir Excellency's particular Attention to the inclosed Paper, which appears to have been published by Captain and Adjutant Gurnet of the Gore Militia. I have the Honour to remain, &c. To Major Gen. Sir P. Maitland, K.C.B. (Signed) JoHN WaLI'OLE WiLLIS. «i.C. &c. &c. Stamford Cottage, Qiieenstown. Government House. 29lh May 1828. I AM commanded by the Lieutenant Governor to acknowledge the Receipt of your Letter to his Excellency of the 22d Instant, with a Newspaper inclosed, which I am commanded to return, and to state, that if you regard theCoi.t^.its of that Paper as libellous, and desire that the Printer should be prosecuted, it is only necessary you should communicate your Wish, and furnish the necessary Information, to His Majesty's Attorney General, who will adopt whatever Measures his Duty requires. If, in soliciting his Excellency sAttent.. . to this Paper, you had any other Object, I am desired to request that it may be I have the Honour to be, &c. The Hon. Mr Justice Wilhs. (Signed) G. HlLLIER. i(iL-. &c. hr. ( 1^.' ) at,/ V,.rk, l'|>|>cr < uii:uln. Jlllli Miiy IH'>8. Iv Answer to your Lcttor of the 'v'JItli Instant, I can only stato. it Ims hciMi so long I'Htalilislifil that a .Fml^o cannot di-livor an extra-jiuliti »l Opinion on any Subject like the present with Propriety, that it is inipossilile, in my Situation, to consult the Attorney General on the Atlliir in question. My Object was merely to ilmw the Attention of the Lieutenant (Jovernor ti) the singular Circumstance of an OtKcer under the {'ontroul()f (iovermneiit being the Medium of derogatory Comment on One of the King's .luilges in the soienni Discharge ot his Duty. It is lor the KxecutiveCiovernment to say, wiiL'ther any and what I'roceeilings should be instituted in a (\ise so conlrarv to Decoriun, and so repugnant to the Spirit and Subordination of HritiHli (iovcrnment. I remain. Sir, &c. (Signed) .loMv Wm.ioi.i; Willis, To Major Hillier, .\.r. kc. Sir, (iovcrtiiiiLMil llipii-i', Niirk, till Jiiiif. With reterence to yoiu- Letter ot' the .Jlst L'ltimo, I am desired by his Kxcellency the Lieutenant (Jovernor t(» observe to you, •!,at he is not aware why you were desired to consult tiie Attorney Oeneral, as my Letter ex|)ressed nothing of the kind, and still less recpiircd any Opinion trnm you. I am to ohsorse, that it cannot have escaped your Attention, that here, as well as in Kuglaud, the Newspapers not unfrequently contain .Articles derogatory to the ,)udgc an' other Public OHicers, not excepting the Head of the (iovcrnment. Criminal I'roccedings are not on those Occasions directed by the (Jovernment to be undertaken, unless the Individual whose Name and Conduct nnisi neces- sarily b • made the principal Subject of Discussion, signifies his Assent to it ; l)ecause it is thought, that the same Discretion of despising such .Attacks should be left to the Individual as is exercised in the other C ase by the (iovcrnment. All that was desireil was, that you should apprize the jiroper OHicer of your Wish, and if you bad a Paper which could be legally proved, to place it in his Hands. This Course you will still adoia if you think proper. .As to the Person whose Name appears to the Paper as Eilitor being an Adjutant in the Militia, his Excellency infers it to be your Im|)ression that be ought to be deprived of his Commission, either before or after a Criminal Prosecution lor Libel ; and unless you otherwise ex|)lain it, your Letter will be considereil in that Light. Except for the Purpose of this Explanation, his Excellency camiot see the Occasion for further Correspondence. I have the Honoiu' to be, kc. TlieHon. Mr. Justice Willis. (Signed) (i. HiLLIEU. &c. fiC. in: «:., York, Upper Caihiilii, jtli .lime IS28. With respect to the Publication in the Gore Gazette, I beg to refer you to your Letter of the •iiJth May 1828, from Eort George, to my .Answer of the .SOth of the same Month, as the Reply to youi- Comnuuiication dated Yesterday ; and to state, that my View of this Subject remains unaltered. I have the Honour to be, kc. To Major Hillier, P. S.&c.&c. (Signed) John Walpoli; Willls. Q^,, York, Upper Caiiad», 18th June 1828. I REALLY regret extremely to be so very troublesome ; but I cannot, as one of His Majesty's Judges, and in 7'erM, submit to be |)ublicly insulted in the open Street, without claiming the Interference of the Government. Mr. Henry Sherwood caine up to me a few Minutes since, and said, " 1 understand. Sir, " from my Eather, that you said Yesterday you woidd not take me wi'.h you on " the Circuit on any Account ?" i answered that it was so. He then saiil, that he would not descend to go with me, and asked why I objected to him. I stated, on account of his Conduct, having seen him in the Streets in a State of Intoxication. This l)e denied, and said he might find « Time and Place uherc \ f I'iiltfi I T^^HHR § ( i^rt ) where fie icoiild /trmitnil Snthfnrlmti. I asketl him if such was oropi-r Ijiiiguagi- to oiii- of His Maifsty's Jiidnt's, ui-..l !ffi him, on the lirst JmpiilHc, in (i»esi of a < (iiistahlc or .^^l^istratc ; 1 soon afk'rwarils nu-t with Mr. Wiilmer, but afler statnig the CircuniHtancuH to him, I ileemoil, on Reflection, the proper Course t()r me to take was to chiim the I'roteetion of the Government. 1 have fretpiently hein mli)rmal of the very repreliensible Conduct of this young Man. Scanlan, a I'uhUcan, with whom Knowhm hnlged (the Man recently shot in the Streets), came to ine, on the'^il of .lune, to complain of some young Men, and among tliem Mr. Henry Sherwood, having on the Friday previously broken the Windi i ; and I desired Scanlan to go to his Solicitor or the Magistrates. Mr. Henry Sherwood is one of those recently convicted before me for the Type Uiot. I nnist re(piest you will lay this Mat*<'r before the Lieutenant Governor with as little Delay as possible, as it cannot be endured that I should lo.iger continue subject to the Insults which have hilely been heaped upon me. I have the Honour to be, your very obedient Servant, To Major Hillier.&c.Stc. (Signed) JoHM WaLI'OLE VVlLLIS. ,^||- (iuviTiinicnt HouHC, I9tli June IR28. I LOST no Time in laying before the Lieutenant Governor your Letter of Yesterday Afternoon ; and immediately, by his Kxceilency's Commands, placed the Hame in the Hands of the Attorney General. I have the Honour tu be, Sir, your most obedient humble Servant, The Hoo. Mr. Juslire Willis. (Signed) G. HjLLIEB. E ■j H Sir, York, Upper Canada, Zlst June 1828. I MUST again trouble the Government of this Service respecting the very extraordinary Conduct of Mr. Henry Sherwood. I have just received In- formation, which I have every Reason to believe correct, that on Tuesday last he made use of, and ajjplied to me, in Allusion to the Opinion I delivered on Monday last, the Terms " Rulfian," '• Blackguarii," " Damned Rascal," &c. &c. &c. ; and saiil, " / was .setting up the Standard of RcbeUkm, and liaraniruing " the People against his Excellenci/ ;" and made otiier Observations to the like Effect, even in the Front of the Court House. I am certain this Conduct can never be sanctioned ; thougii I am sorry to find, that even after what J have already complained of, he ibould be continued in the Service of one of the principal Officers of Government. If this Matter be not taken up here, I must intreat that it may be referred to His Majesty's Government. I do not think that in such a Stnte of Things my Life is free Ji-om I'^unger ; and I am deter- mined to use e' 'ry Effort to eradicate the infamous Conspiracy that I now find has long bee,, in existence agairst me. I beg this may be laid before his Excellency, who will, I am sure, as well as yourself, excuse me if I appear to have written, as / really feel, most warmly on the Subject of these very disgraceful Proceedings. I have the Honour to remain, &c. Major Hillier, &c. &c. (Signed) JoHN Walpole Willis. ■ Sirj ' 'iurk, 23d June 1828. I AM directed to acknowledge the Receipt of your Letter of this Date, and to observe to you the Connection of his Excellency's Name with Conversa- tions imputed to Mr. Claudius Foster, enables his Excellency to judge of the Degree of Attention which is due to the multiplied Communications which you have addressed to the Lieutenant Governor, and to add, that his Excellency is not in the habit of listening to Remarks of the Nature you allude to. You cannot but be aware that it does not depend on the Government, nor on the Lieutenant Governor, to secure to you the Respect which it is most desirable should attend Persons filling the Situation to which you have been appointed. The Courts, and the Judges of the Coutts, have, it must be presumed. mm m ( 1. ) premmiftl. ttill I'owcr to protcrt tlit-msi Ive* iirulcr tliu Law of iIr. I.aiul. atul Ins Excfllcii. ^ 'ms ne.tT been appcaleil to on any sucli (Jccnsion as the present. I am ilcnireil Ciiitlier to aild, that in* leply to any similar Coinmiinieations that you may have to atlilrcss to the I.ieiiteiiaiit (Jovernor, his K\eilltiiey can only refer )oii to llie Crown OHicers siml t'le Maf;istraey of the Country. I have the Honour to be, kv. Mr. .liisiicf \Villi». (Signed) (i. IIilmcr. Sir, York, II|>|)cr Caimdii, '.'.'lil June iHi'N. Fori the Security of my jKruonai Safety, and in order to ensure that llespcct wlii'-h I am fully sensihlc shoidd always attend Persons fiilin^r tiie Situation to whieh I have had the Honour of heinj,' ai)pointeii by Jfis M(i;is/i/, may I most respeetfully enquire if his J'.xeelleney the Lieutenant (iovernor will have any Objection to transmit the M'liolo of my multiplied Conuniniicalions to the IVincipal Secretary of State for the Colonies ; and in the meantime to permit me to give the fnlie Publicity to the Whole of the Correspondence. I have the Honour to be, Sir, Your obedient Servant, lo Major Hillier, Kic \c. (Signed) .1. \V. WlI.LIS, J. Sir, York, 2-lili .lunc l'i2X. 1 FiAVu received your Letter of last Kveuini;, and am dii ctco !)y the Lieu- tenant Ciovernor to acquaint you tiiai Copies of your Correspondence will be transmitted to the Secrctiry of State ; and in reference to the concluding Part of yoiu' Letter, I am directed to add, that with resjject to '.he I'ublication of the Correspondence you must be guiilod by your own Discretion, for the Exercise of which you of course will be responsible to His Majesty's Government. 1 have the Honour to be, &c. Mr. Justice Willis. (Signed) (j. H'LLIF.R. My dear Sir, York, 20ih June 1828. Thk inclosed has been put into my Hands this Moment, and I must request an immediate Kxplanatiou upon it. You will consider that it has been referred to you for that Purpose. Considering the Situation that Mr. \Villis holds, I shall regret exceedingly if you have given Occasi..n for the Statement he has made. Y'onrs, very sincerely, Henry Sherwood, Esq. (Signed) .1. B. IloBINSON. Sir, York. 20th June 1828. I AM extremely happy in having it in my Power to state that the Complaint made by Mr. Justice Willis, of my insulting Conduct towards him, is entirely incorrect. Some Time last Fall I asked Mr. James Givins, who, Mr. Willis had informed me, was to act as his Clerk of Assize upon the Eastern Circuit, whether he would not prefer accompanying my Failier upon the Western Circuit, being aware that he had Business to transact in the London District ; antl 1 wished to eflect a Change, if possible, as my Father was desirous that I should be present at a Trial of an Ejectment Cause in tie District of Batliiust, in wliicli lie was interested. I informed Mr. Givins, that I knew the Eastern Circuit to be the more lucrative of the Two, and that I >'ould give him the DifTerence, to which Arrangement he assented. I then spoke to Mr. Willis, who seemed higiily delighted with the Change, and expressed his Satisfaction to one o.- two Gentlemen, whose Names I can mention, if necessary. I took it for granted that I was to accompany Mr. Willis ; indeed "le himself mentioneu to mv Father Rr " that ill ( 1,18 ) that sudi was the Case. Wlien this Arrangement was made, Mr.Wilhswas perfectly conversant with all the Circumstances connected with tlund the afore- said Timothy M'Pherson, and in presence of the said M'Pherson and Buckley, this Deponent informed Judge Willis, that he never heard Henry Sherwood say any thing against him at all : And this Deponent further saith, that the said Nathaniel Buckley also wished to persuade this Deponent that he had heard the said Expressions, as mentioned by him to M'Pherson, and wished him, this Deponent, to make Affidavit to that Effect, which this Deponent declined doing as he had never heard any thing at all, and could not do so with Truth. „ , (Signed) John Bird. sworn before me, at York aforesaid, 27th June 1828. (Signed) G. Powell, J. P. The Expressions said to have been made use of by Mr. Henry Sherwood in my Presence, in the above Affidavit, are entirely incorrect. Nothing to my Recollection fell from Mr. Henry Sherwood but what was strictly respectful to Mr. Justice Willis. York, 27tli June 1828. (Signed) Jas. E. Small. ( 163 ) Upper Canada, Home District, ) James Bridgland, of the Town of York in the said District, ) Yeoman, maketh Oath and saith, That he never heard Henry Sherwood say, either in front of the Court House oi any where else, that Judge Willis was raising the Standard oi" IlebelHon in the Province, or make use of any Expressions at all to the Prejudice of Mr. Justice WiUis; that a Man by the Name of Timothy M'Pherson, as this Deponent is informed, told iiim that he had heard Henry Sherwood say, in front of the Court House, in tlie Presence of James E. SmaU, Esq. that " Mr. WiUis was raising the Standard of Rebellion " in the Province," or Words to this Effect : And this Deponent further saith, that he informed the said Timothy M'Pljcrson and Nathaniel P. Buckley that he had never heard any Conversation of the Kind. (Signed) J. Bridgland. Sworn before me, at York aforesaid, this 27th Day of June 1828. (Signed) G. Powell, J. P. The Expressions said to have been made use of by vir. Henry Sherwood in my Presence, in the within Affidavit, are entirely incorrect. Nothing to my Recollection fell from Mr. Henry Sherwood but what was strictly respectful to Mr. Justice Willis. York, 27lli June 1828. (Signed) Jas. E. SmaI.L. Sir, York, 2Gtli June 1828. I AM instructed to make known to you, officially, that I am commanded by his Excellency the Lieutenant Governor to receive from you every Information which you may be enabled to furnish relative to the Proof of Publication of a Number of a Newspaper, which you have made the Subject of a Communication to the Government, in order that I may take the necessary legal Steps against the Editor of the Gore Gazette, in which Paper the Article complained of appeared. I am further directed to give you to understand, that as in a Criminal Prosecution your Name must necessarily be brought into Public Discussion, it will only be undertaken, in this Instance, with your Concurrence. I am, Sir, Your very obedient Servant, (Signed) John B. Robinsou, To the Hon. J. w. Willis, Attorney General. &e. &c. &c. ■' Sir, York, Upper Canada, 27tli June 1828. In answer to your Letter of Yesterday, I beg leave to say, that towards the End of the last Month I endeavoured to draw the Attention of his Excellency the Lieutenant Governor to the singular Circumstance of an Officer under the Controul of Government being the Medium of derogatory Comment on me, as one of the King's Judges, in the solemn Discharge of what I conceived to be my Duty. I of course considered that my Name, as such Judge, would be used in any Proceeding the Executive Government might determine to institute for the Punishment, not only of the Printer, but more particularly of the Author. I have only to state, that I received at the Post Office of this Town a Paper addressed to me, containing the Publication in question, and that Paper I have since disposed of. I think it was sent to Major Hillier. I remain. Sir, &c. To J. B. Robinson, Esq. (Signed) JoHN WaLPOLE WiLLlS, J. &c. &c. &c. Sir, Vork. lOth July 1828. In the Reply given by you to my Letter, respecting a Publication in the Gore Gazette, you state that it was the Author and not the Printer of the Publication that you desired to prosecute j but you have not informed me who the Author is, or what Evidence can be adduced. You can, perhaps, supply this Information ? I am. Sir, &c. (Signed) J. B. Robinson, To the Hon. J. vv. Willis, Attorney General. &c. &c. &c. ( iM ) 1^^,. York, Upper Canada. lUtli July I82S. With reference to the Publication in the Gore Gazette, I said, " I of course «« considered my Name as a Judge would be used in any Proceeding tiie " Executive Government might determine to institute for the Punishment, not « ONLY of the Printer, but more particularly of the Author," including both. You probably are quite as well acquainted with the Author as I am. / can furnish no Evidence on the Subject. I am very much astonished at a Doubt even occurring where the Language is so obvious. I remain, Sir, Your obedient Servant, To J. H. Kobinson, Esq. (Signed) .loilN WaLPOLE V/lI.LlS. &r. &c. .Sic. §i,, York, 10th: Illy 1828. I HAVE this Moment received your Note in answer to mine of this Morning, to which I need only reply, that it is quite consistent with your other Communications. I am, Sir, &c. To the Hon. Mr. Willis, .louN B. RoBINSON. fic. &c. &c. oj, . York, Upper Canada, 3d July 1828. I MUST again request an Answer to my Letter of the 28th Ultimo. I now inclose an Affidavit, which has just been handed tome, respecting the Conduct of a Mr. Stewart, one of Mr. J. B. Robinson's Clerks. I have the Honour to be, Sir, &c. &c. &c. Major Hillier, &c. &c. (Signed) JoHN Wai.pole Wilms. Home District, "I Nathaniel Prestidge Buckley, Assistant Clerk in His Majesty's York, to wit. J Crown Office, York, maketh Oath and saith, That he, this Deponent, on the 12th Day of April last past, was in the Crown Office when John Stewart (a Student at Law in the Office of John Beverly Robinson, Attorney General, and Relative to Henry John Boulton, Solicitor General, and to the Honourable Mr. Justice Sherwood, as this Deponent is informed, and residing in the House with the Solicitor General), came into the Office between the Hours of Two and Three o'Clock of said Day, as near as tiiis Deponent now recollects, and declared and said to James Martin Cawdell, Head Clerk in said Office, " Do you know what ? — By G — d, I never knew so great a Black- " guard in all my Life, nor so damned a Rascal, as that Judge Willis is ! — Do «' you know what he has done ? He has let Collins come into the Court to " blackguard the Attorney General;" and made use of other Words which this Deponent could not distinctly hear. This Deponent saith, that the said James Martin Cawdell said, in reply to t!ie said John Stewart, " I will not allow you " to speak that Way of my Friend," or Words to that Effect. This Deponent saith, on the following Morning, Simon Washburn, Esq. Barrister at Law, came to the Crown Office on Business, to whom this Deponent related what the said John Stewart had said die Day before j and this Deponent saith, that shortly after, James Edward Small, Esq. Deputy Clerk of the Crown, came into the Office, to whom Mr. Washlvurn spoke of the Circumstance, when this Deponent related to the Deput) (^!. of the Cro vn as above stated, to which Mr. Small replied, " that he was aato.i.shed that Stewart could say the like;" but added, " I would not have wondered if young Sherwood had said it." (Sigi -1; Nathaniel Prestidge Buckley. Sworn before me, this 3d Day of July 1828. (Signed) Simon Washburn, A Commissioner in the King's Bench, Upper Canada, for taking Affidavits. ( Ui5 ) Mv ili-ar Nir -lariiV'* oiV.cc Viiti :;(iili Juiu' Ls28. In'k plv to vo'iii Letter of the Q^th Instant I hv^ leave to state, that u|)oii receiving 'Mr. 'justice Willis in the Kohin}; Room on the Mornin-,' ot tiie nth April last, being the first Day of his Attendance at the Assizes as Jiulfj;e. he infbrmeil me that a Matter of the most nni)leasant and serious Nature was likelv to come before the Court, and he would take that Opportunity ot making the Cucunistance known to me, in order tliat I might take the necessary Steps to prevent the Parties about to be coniplaineii of from making then- Escape. Hi, Lordship alluded in specific Terms to the Duel wliich took place in KSl? between Samuel P. Jarvis, Esq. a.ul the late Mr. .John Uidout ; and expressed bis Regret that afler so long a Period of Time the ^Luter shoulil again he brought before the Public, lie also expressed his Regret that Mr. Jarvis had noticed the infamous Observations of the Editor of the Colonial Advocate, in allusion to the Duel ; as the uni.leasant Circumstances about to be hrouglii forward arose, ui his Opinion, fiom Mr. Jarvis's not treating tiiat 1 aper with tiie Contempt it deserved. Ho s .id that since the Matter was to be broii.'ht forward, a full Investigation woidd take place, and the 1 arties should not be allc . the Opportunity of escaping ; aiul concluded by s^iying, " If lie were in uieir Place, he would get into a Boat and paddle ott. 1 observed, that whatever might take place, I should not act without full Authority, and certainly should not arrest the Parties on my own Responsibility. My Impression then was, and that Impression was confirmed b) the very exLiaordinary Proceedings which took place, that xVIr. Willis was aware of the Line of Conduct which Mr. Collins, a Defendant under Recognizance for Libel, intended to pursue ; and so clearly did it appear in this Light to my xMind, that I dill not hesitate to acquaint the Solicitor (ieneral, one of the Parties complained of, with the Conversation which took place between Mr. Willis and myself in the Robing Room. I vibsequcntly mentioned the Circumstance to several other 1 eisons, and, amongst the Number, the Chief Justice, on the Day of his Departure tor England. , ■ /> • .• With respect to your Enquiry, whether I considered the Communication made by Mr. Justice Willis as confidential, I beg leave to state, that his Lord- ship and I were not then upon such Terms as would warrant conhdential Communications, and that only on Matte-, relating to the Duties of our respective Situations had there been for some Time previous any Intercourse l)6tW6611 US* I beg you to believe me, my dear Sir, Your most obedient Servant, (Signed) W. B. Jarvis, Major Hillier, &c. &c. Sheriff, Home District. 11* ■ It c- York, I5lli July 1828. I HAVE received the Letter from Mr. Willis to the .Secretary of State, inclosed in your Letter to me of the 29th June ; and, in returning it, must express my Regret that such a Production should have proceeded from any Person in Mr? Willis's Situation. A few Months ago I should have thought it impossible. ,r. -.^/. i /-> The first Statement in Mr. Willis's Letter respects myself. Of the Occur- rence to which it alludes I have already given a very full Detail in my Letter to his Excellency, being anxious to receive the Opinion of the Government upon it. The Accusation of Mr. Willis is known by my Brethren of the Bar to be as unfounded as the Attack he thought proper to make upon me was, in my Opinion, unfeeling and unjust. I will only add, I am too inilifierent to Mr. W^illis's Statements and Proceedings, evidently intended as they are to answer unwarrantable ds, to think it necessary to vindicate myselt more particularly from them, i .ess the Government is pleased to express a Desire that I should. .. , , ^t ^ • • 2d. When his Excellency placed in my Hands the Newspaper containing a Publication of which Mr. Willis complains, I wrote him the Letter marked A., and received the Answer B. T t It I ii ( m ) It was iiL'itht'iuii explicit lun- ciiiirtt'ous Answer to my Letter, but T was not surprised. Some Days after, liearing that Mr. Willis was about setting out for Kngland, it occurreil to me that I ought not to omit enquiring of him before he went who the Autlior was to whom he alluded in his Note, and what Proof he could enable me to adiluce. Not having his Letter before mc, and some Days having elapsed since I read if, the Uccollection I retained of the Number of Scores under the Word Author impressed me with the Idea that it was the Author and not the Printer, or the Author rather than the Printer, that he wished i)unishe(l. Under this Apprehension 1 wrote the Note C, and 'received jin Answer 1)., to which 1 coidd onl) reply that it was (piite consistent with Mr. V/ilhs's other Conmuinications. 1 will not trust myself to conunent upon the Insnuiation evidently intended to be conveyed by Mr. Willis's Note, or the Style of his Replies to a purely official Correspondence, which my Duty ren- dered necessary. It appeared at last that he coidil not tell me who the Author was; but nevertheless, if I had omitted to ask the Question, I have no doubt I should at some future Day have had it imputed to me, that I waived proceeding agamst the Author, though Mr. Willis tendered t:ie Proof. For the rest I will only say, that if Mr. Willis intended to insinuate that I had any Connection with the Paper alluded to, or knew any thing of it 'till I saw it in Print, he might, with as little \ iolation of Truth and Justice, have expressed his Sus- picions ot the Attorney General of Kngland. He thought such an Insinuation would answer some Purpose, and theretbre made it. 3d. Mr. Sherwood is my articled Clerk, as Mr, Willis is careful to state • that is, he attends in my Office within certain Hours. He resides under his Father's Roof however, and I therefore felt it right to make his Father aware of the Charge which had been brought against him ; and I also, both verbally and m Writing, expressed my earnest Hope to the young Man, that he had not given Occasion for Mr. Willis's Statement, as nothing could be clearer than tne great Impropriety of addressing any Judge in the Manner complained of. Another Complaint of Mr. Willis's aga :,;t Mr. Sherwood and a Mr. Foster being placed in my Hands very soon after, I wrote him the Letter IL, and received the Answer I., the first Sentence of which might, I think, have very well excused me from having any further Communication with Mr. Willis. I cannot conceive that it can be expected of any Public Officer that he is to continue a Correspondence merely to subject himself to rude and flippant Replies ; and if it were not that I can and do look upon anything Mr. Willis can say as of ti . least possible Consequence, I certainly could not have sub- mitted to write to him again on any Subject. With the Gossip about Mr, Foster I have nothing to do. With respect to v/' E'^r^^P'^ ""'* ^^^' S^^wart, if they have committed any Ofience against Mr. Wilhs he must adopt the proper Means of proceeding against them, and they must have the same Opportunity as other Persons of defending the Charge; except, however, that an Observation of Mr. Sherwood's is stated as if it were a Challenge or a Provocation to fight. The Woids charged against the other young Gentlemen are not such as subject them to Punishment in a Court of Justice. ,/% ^^'°"^^. in'plying a Challenge are affirmed by Mr. Willis and denied by Mr. Sherwood. It is not for me to decide who is to be believed. It is in the Power of Mr. Willis to have it determined in the only just Manner. I called upon Mr.Shorwood and Mr. Stewart for Explanations: and I inclose them as they gave them, K. and L. The Second Charge made against Mr. Sherwood I have no doubt, from the Documents produce.!, was groundless and malicious. I regret to have had Occasion to trouble myself with Matters so much out of the Course of official Duty. Mr. Foster and Mr. Sherwood are well known I have heard no Person speak of them in Terms of such extravagant Approi bation, and particularly of Mr. Sherwood, as Mr. Willis usually did during a long Period of more fiimiliar Intercourse than ever existed between myself and them, though our Acquaintance has been of a much longer Standing. To asperse them now seems to be Part of a System which Mr. Willis has entered upon, for Reasons very evident, from the Mention constantly made of their fathers, Relations, and Friends; and I have learned from Experience that he 18 ( I'i? ) he is not likely to suffer Scruples to stand in his Way svhen Character is t.» be injured and a Public Ferment to be j)roduced. Mr. Stewart I have known Iroin his Childhood ; he .s a particularly steaiiy and unoffending young Man. I am, Sir, &c. Major Hillier. &c. (Signed) Joiiv B. IloBiNsoN, Attorney General. ., , , /. „ York, '^Hth June IH:.'H. Having licard, from a Source that 1 could not doubt, of the unwarrantable Attack made by Mr. Justice AVillis upon the Attorney General, and of his permittuig the Editor of a notoriously scurrilous Paper to come into Court without any other Reason tliau to gratify his own Malice, and to heap Abuse on the Attorney and Solicitor (ieneral, I did say in the Crown OHice in Conversation with a Clerk there, to the Kffect of what Mr, Buckley has stated, not supposing that a Public Otticer of the llespectability of the Clerk of tlie Crown would em|)loy in his Oftice a Person who, for malicious Purposes, wouhl be the Bearer of Conversations that occurred there. This Buckley came out as a Servant to Mr. Willis, who it is supposed got him the Situation which he now holds ; and, whether from Motives of Gratitude or not, he makes a Practice of going about collecting and repeating to Mr. Willis every idle Word which lie may hear to his Prejudice ; and he has been proved to have stated, in some Instances, what never did occur. I did say, I most candidly confess, what Mr. Willis has represented, but not with any Kxpectation of its being repeated, nor for the Purpose of injuring him; and I have heard Hundreds of Persons, Strangers as well as others, express themselves to the same Effect. (Signed) John Stewakt. Mrs. Willis to the Lieutenant Governor. Mns. Willis, with her most respectful Compliments to the Lieut. Governor, takes leave to request he will honour her with a few Minutes' Conversation upon Business of the highest Importance both to herself and Family. She has also another Favou. to ask — that his Excellency will be so good to direct Mr. Claudius Foster to attend at the same Time he is pleased to appoint lor seeing Mrs, Willis at Stamford Cottage, and hopes it will be convenient to the Lieutenant Governor to name an early Day for the Interview. York, 21st June 1828. His Excellency's Answer. Sir Peregrine Maitland presents his Compliments to Mrs. Willis, and, lu acknowledging the Honour of her Note of Saturday last, he must express his Regret that Mrs. Willio should have had the Trouble of calling at the Govern- ment House (after his Departure) on Friday last ; as any Business of Importance to Mrs. Willis and her Family, with which the Lieutenant Governor could be justified in interfering, would with Propriety be made the Subject of n Com- munication by Mr. Justice Willis through the established Channel. Government House, Monday Morning. Mrs. Willis to the Lieutenant Governor. Mrs. Willis presents her most respectful Compliments to General Maitland, and, in acknowledging the Honour of his Note of thi- Morning, she must express her Regret that General Maitland declines to con |)ly with her Request ; more particularly so, as it is the first and only Time sin- ever was denied an Audience, however high the Situation might be ; and she sincerely hopes she will not long have to say that General Maitland, whose Politeness and good Breeding she has had Proof of, should refuse trto derived no liencfU Worn the kuul Intentions of Lord Bathurst, Eord (iod.-rich, and yourself, in my Favour. I left England, however, with an express Uuderstaiuling of b.'injr paiil as /;,/«//// ./j/f/^f also. On that Occasion Mr. Hortoii sent f()r Mr. Stephen, in onler that there iiuglit be no Mistake ; and Mr. Balfour, Lord Cioderich's Private Secretary, has since interested himself considerably in the Matier. Unless an Act be jiassed by the Imperial parliament, if indeed any Act be necessary, (ami, notwithstanding the Opinion of Sir James Scarlett, perhaps, on fiirther Consideration, this will be found not to be the Case,) the Matter cannot he decided here for another Year ; may 1 therefore venture to ask from whom I am in the meantime to receive the Salary of Equity Judge, in the Expectation of which I left England. If it is to be paid in England, I should wish it to be forwarded to my Bankers Messrs. Stevenson and Salt of Lombard Street. I believe, from what 1 can learn, there are nf. Funds here, unappropriateil, out of which it can be paid. If however it be inconvenient that it be paid at all, may I hope, as the Chief Justiceship is soon likely to be vacant, that I may succeed to that Oflice, until something can be settled respecting an equitable Jurisdiction in this Province. As an English Barrister of more than Ten Years standing, the Son-in-Law of one of the eldest Scottish Peers, and the Husband of the only titled Female in the Province, with the Exception of Lady Sarah Maitland, I must confess I feel it rarther irksome, under the Circumstances in which I came here, to remain in an INFERIOR Situation. I have requested Mr. Stephen to lay before you a Scheme for the Creation of Canadian Baronets, on the same Plan as that on which those of Nova Scotia were at first created. I have also taken the Liberty to transmit, through him, a Proposal for the Establishment of a Branch of the Bank of England in thi^* Province : and I propose, should it meet with your Approba- =■ lion, C 17^ ) tion, to devote my leisure Horns to tlic Classiticatioii and CousolidaLion of the Laws of this Colony, and also of ail the otiier British North American Provinces, witii a View to what here is anxiously desired, a Union with the Mother Country. Lord Eldon, the Attorney (Jeneral, and Mr. Home, of the Chancery Bar, will speak of me as I deserve, if any Reference as to my Professional Character be necessary. As to my Family Connections and private Character, I refer to General Sir 'I. Boulton, One of Hiu Majesty's Equerries, who has known me from Infancy ; and to the whole of this Province, for the Good-will borne towards me. I beg to reiterate my Thanks for the kind Consideration ex- pressed towards me in your Dispatch of the '2,5th of November last, anil to assure you, that i should not now have troubled you had I been installed in a Court of Equity, or known how ti act otiierwise than I have done, in consequence of the .ntoward Circumstances that have occurred. I understand there is another very urjrent and zealous Candidate for the Chief Justiceship of this Province ; but I trust my Claims will not be forgotten, in case an equitable Jurisdiction be not immediately erected. From my constrmt Practice and Ex- perience in equital)le Proceedings, I should, of course, prefer presiding in a Court o^^ that Kind, particularly in a new one, to that of being at the Head of any other ; but I hope that my Conduct as a Judge of the Court of King's Bench, since I have been here, has been such as to prove that I am not altogether unfit to preside there, until an equitable Tribunal, distinct from the Common Law Courts, be established in this Province. I ha- e the Honour to remain, Sir, The l^j{ht Hon. ilie Secretary o{ State, Most respectfully your very obedient Servant , (Signed) Join Walpole Wii.i.i.s. Colonial Uepartnient. No.? COPY of a Letter from Mr. Wilms to Mr. R. W. Hay. '*"■. Yoik, U^per Canada. 21st April 182H. In consequence of an Application I made to Lord Bathnrst last Year and subsequent Solicitation on my Behalf; through the Mediam of my Friends' and particularly Mr. George Baillie Hamilton, then the Private Secretary of the Lord High Admiral, and formerly acting in the same Capacity to Lord Melville you were good enough to ask, through the Intervention of Mr. Stephen, if 1 continued to desire a judicial Appointment to the Cape of Good Hope. I had then, however, received from Lord Bathurst the Nomination to the Offices of One of the Judges of the Court of King's Bench, and also that of Master of the ..loli. or"\'ice Chancellor of Upper Canada ; and, in the Expectation that I should hold bnth Situations, I declined your obliging Offer. Owing, however to a Doubt entertained hy the laie Attorney General of the Power of His Majesty to erect a new Court of Equity in the Colonies, the btter, and prin- cipal Appomtment; lias not hitherto taken place. Under these Circumstances, although personally unknown to you, I venture to solicit your good Offices in my Favour, for obtaining for me the Chief Justiceship of this Province, now about to become vacant, and for which there is, I understand, a veru uring a Branch Bank of England in the British North American Provinces, beginning with Canada, which certainly is as loyal and truly English as any Part of the King's Dominions. I have imposed on myself the Task of classifying and consolidating the Laws of British North America, and pointing ;'.it the Mode of af complishing a perfect Assimilation with those of England, which I think would be a great Step of, •whaf here is devoutly wished Jur, a Union with the Mother Country. I have sent my Friend Mr. ^^tephen many recent Tracts relative to this Province, which I am sure he will be Imppy to shew you. I wrote to Sir Charles Wetherell and Lord Eldon, to wiiom I am greatly indebted for their good Offices in pro- curing me my intended Appointments, to assist me in obtaining the Chief Justiceship, with your Aid, until I can obtain the Presidency in an independent Court of Equity ; I mean a Court of Equity unconnected with a Coint of Law. I beg to apologise for being so very troublesome and intrusive ; and I have the Honour, &c. The Right Hon. U. \V. Horton, (Signed) JOHN WaI.1'0LI: WiLLIS. &c. Kk. &c. P. S. There is a Gentleman of the English Bar, who is now, I am told, an urgent and likely to lie a success/'ul Canditlate for the Chief Justiceship, unless I am fortunate enough to have vour Aiil. Xx !1 ( 171 ) No. 4. COPY of u Letter fh m Mr. Willis to Eail Bathuust. My Lord, York, Upper Oinadu. 2lst April 1828. l^uEviousLY to your late temporary Retirement from Office, your Lordiliip was kind enougli to nominate me to tiie Situations of Master of tiie Rolls of Upper Canada, and One of the Judges of the Court of King's Bench of that Province ; and as I have not the Honour of being personally known to you Lordship, I believe I am indebted for this Mark of your Lortlship's Con- sideration to Lord Eldon, Sir (' larles Wetherell, Mr. Home, and Mr. Stephen, and my other Friends who interested tliemselves for me. By a Dispatch of the 9t!i of April 18^i7, your Lordship had suggested to the Lieutenant Governor of this Province, that the judicial Office of Chancellor, under the Title of Master of the Rolls or Vice Chancellor, might be advan- tageously committed to the Chief Justice or One of the inf(.'rior Judges of the Court of King's Bench ; and it was in consequence of this Suggestion that I received the Appointment from your Lordship, which was confirmed by Lord Goderich, and with a Letter from him, that I was to be entrusted with the equitable Jurisdiction of this Province. I left England witli only my Com- mission as a Judge of the Court of King's Bench, but on the crpress Promise from Mr. Horton, the then Colonial Under Secretary, that my Pay as Equity Judge sliould commence from that Time> and that my Patent (notwithstanding Obstacles were made to it by the then Attorney General Sir James Scarlett) should be sent after me. It appears, however, from a Dispatch from the Colonial Secretary, of the '25th of November last, that the Ifien Law Officers of the Crown entertained very considerable Doubts whether His Majesty could lawfully, by Letters Patent under the Great Seal, without the Intervention of Parliament or of the Local Legislature, create any new Judge in Equity in Upper Canada; wherefore the Letters Patent for creating the Office of Master of the Rolls were not proceeded with ; but it was stated, that as it appeared I left England as One of the Judges of this Province, with the crpress Uiider- stajuUng that, in tlie Event of a new Court of Equity being erected, I v.as to preside, that Intention would of course be carried into Execution. The late Period at which the Business came before the Provincial Parliament induced them to postpone it until next Year. I am convinced, however, it would be very acceptable here, if, in the Interim, His Majesty \,ere enabled, by an Act of the Imperial Parliament, (if indeed any Act be necessary, for the same Office was created about Six Y'ears ago in Nova Scotia, witiiout any such Act,) to carry this original Intention of your Lordsiiip in my Favour into Effect. Indeed I cannot doubt, neither does Mr. Stephen, that it may be done without such an Act ; and I know the present Solicitor General was, in the first Instance, of the same Opinion. But as the Chief Justiceship of the Province is now likely to be vacant, and a Difliculty may arise to prevent the immediate Erection of an equitable Tribunal in this Colony, may I venture to entreat your Lordship to put me in the same Situation as if your favourable Intentions towards me had been fulfilled, by endeavouring to obtain lor me that Office which, in point of Emolument, is not greater than what I came here with the Expectation and Promise of receiving from the Appointments I was to fill, only one of which, however, has hitherto been productive of any Emolument ? I understand that a Gentleman at the English Bar. where I practised for Ten Y'ears previously to my coming here, is likely to fill this Situation, for which he is a very urgent Candidate, unless I can obtain your Lordship's Interference in my Favour. 1 have the Honom-, &c. Eiirl Uaihurst, &c. &c. &c. (Signed) JoiiN Walpole Willis. I ( 17^ ) be No. 5. COPY of a Letter from Mr. Willis to the Secretary of State for the Colonial Department. Sir, York, Upper Canada, 25lli April 1828. When 1 applied to you for the Salary as Equity Judge of this Province, and expressed a Hope that, if under existing Circumstances it were inconvenient that it should be paid, and tiie kind Intentions in my Favour should not be carried into Effect, I might succeed to the Chief Justiceship of this Province, instead of remaining merely one of the inferior Judges of the Court of King's Bench, I neglected to transmit for your Information (but which I now ilo) a Copy of a Letter written by me to the then Under Secretary of State for the Branch of the Colonies to which this Provi nee belongs, on the /V«7/i of which, and on the Understanding that there was a Fund from which the Salary w-uld be paid, (without resorting to the Local Revenue, which at present is ililly appropriated,) I embarked with Lady Mary Willis, and the rest of my Family, for this Country. I have also ventured to inclose the leading Pamphlets on the Civil Controversy of the Religionists of the Canadas, supposing the Matter may probably come under the Consideration of the Imperial Parliament. The Pastoral Letter of the Presbyterian Clergy has been only \ery recently published. I have the Honour to remain, 6iC. The Rt. Hon. the Sec. of State, (Signed) JoHN Walpole WiLLIS, Colonial Department. Sir, Gray's Inn, 18ih July 1827. In availing myself of the Intimation you were good enough to 'i,ivo v-.c on Friday last, when I had the Honour of seeing you iu Downing Street with Mr, Stephen, that my Departure for Upper Canada should not be {''flayed on account of mv Commission as Equity Judge of that Province not Jeing com- pleted, I beg k:\ve to offer my best Acknowledgements for your Kindness in ; '.is Instance, as well as for your Assurance that my Salary for the Office should commence from that Day, and the Commis:,ion be forwarded to i..e. I lurpose leaving Town To-morrow for Liverpool, in order to ;ail by the next P'cket. I I iVe, &c. The Rt. Hon. J. Wilmot Horton, &e. (Signed) JoHi' WaLPOLE WiLLIS. No. 6. COPY of a Letter from I'le Rev ■'^ D. Willi: to \i.i. SecretaryllusKissoN. Inclosnre. Sir Gray 3 Ir i Coffee Ho. e, 6th May 1828 When ray Brother, Mr. John Walpole Willis, • (V' out to Upper Canada as one of the Judges of >i)at Province, it was in the r ■, tation of i.aving a Com- .U'ssion as Equity Judge superadded to his other Situation, and under the express Promise of the ('olonial Secretary, M. Wilmot Hor*on, that his Salary for the latter Office should cv>;nnie<)i.:e from tiie Date of their Interview, Hth ( 17'' ) Mtli Jul) 18'J7. riie Opinion of Sir James ScarluU upon the Subject ot tlie Equity Appointment having l)een dehiyetl, and tlie Season tiist closing when so long a\'()yage ami Journey with a Family coukl with Propriety be undertaken, my IJrotlier was thereby enabled to proceed forthwith to his Uestination, relying implicitly on the Promise thus given. Delays and Doubts, it appears, have since arisen on the Subject of the Appointment, and, in consequence, no Salary has been paid for an Office not yet in actual Kxistence. Without Assurance of bis Salary as Ecpiity Judge being tlulypaid, my Brother would certainly not have sailed for Canada; but uniler the entire Conviction th.it it would be reiulered in due Course, he arranged his Ailairs accordingly, and lel't England; little ^iupi)osing tliat his Income, instead of being augmented, should have that Portion of it which has been received diminished by a Rate of Exchange, imposed upon all Money remitted to Eng- land, of ?H)t less than Eleven and a IlalJ'per Cent. The Injury his Affairs have thus sustained must be evident, nothing being allowed for the Bxpences of Voyage or OutHt. If there be Hardship in his Case, 1 am aware of some Difficulty on the Part of the Government. It caimot, however, I am persuaded, be the Wish of your Department to disappoint the reasonable Expectations of a Servant of the Crown, far less to evade the Fulfilment of an express Engagement. My Brother has empowered me, by the proper Forms, to act for him in his Absence ; and I have every Reliance upon your Candour and Sense of Justice, for taking such Steps as you shall deem proper to make good the Engagement under which he went out to execute that Office, which, it is evident, it is not his Fault that he has not hitherto been able to perform. I inclose a Copy of a Letter ' Horton.* The Right Hon. \V. Hiiskisson, &c. &c. • by him to Mi'. Secretary Wilmot I have, &c. \...^ id) W. D. W^iLLis, Minister of irinity Church, Bath. No. 7. COPY of a Letter from Mr. R. W. Hav to the Rev. W. D. Willis. Sir, Downing Street, li)tli May 1828. I AM directed by Mr. Secretary Huskisson to acknowledge the Receipt of your Letter of the 6th Instant, and to acquaint you, that he understands that your Brother was perfectly aware, previous to his Departure for Canada, of the Difficulty which existed witi- respect to liis Appointment as an Equity Judge j and as both the Office itself, as well as the Amount of Salary to be assigned to it, depends upon the Decision of tlie Provincial Legislature, it is quite impossi- ble for Mr. Huskisson to entertain your Request tor additional Salary for your Brother ; and I must add, that Mr. Wilmot Horton has no Recollection what- ever of having made any Promise to Mr. Willis which was not entirely contin- gent on the Establishment of the Office. The Rev. VV. D. Willis, I am, &C. Gray's Inn Cuffee House. (Signed) II. W^. Hay. ^>ec Oio preceding Page. ^^V I ■ C 177 ) No. 8. COPY of a Letter from Mr. WrM.is to tlie Secretary of State. j-jj. V„rl., I'l'ivr ( iuuil:. Ml. Ma> If-J^. Tiir. Expectation of presiilin-^f in a Court of K(iuity in lliis lVovii\ce in- ihiced mo to leave F.no;luml, ami to refuse a juilicial Situation at tlie Cai)e ot Good Hope of nearly Double the Eniolinnent of that 1 now lioKl, as merely One of the Puisne .Iiul^es of this Colony ; hut an Opp')rtnmty smII probably present itself, by the Resignation of the Ciiief .Instice, of my benifr placed in a Situation e(iinvaient to that of Kcpiity .Juti York, Upper Canadii, I4lh April 1828. I AM sorry to have Occasion again to api)eal for a Decision respecting the Duties of the Attorney General of this Province, who now repudiates 'fas I understand him) what lie stated on Friday last, viz. that Criminal Prosecutions in this 1 rovince are, as in England, open to the Bar ; and he has this Day in open Court, further asserted, that, as His Majesty's Attorney General for this 1 rovince, he is answerable fbr his Conduct in ins lega.. Capacity, m( to anu of His Majesty's. Judges of this Colony, but only to the King's Government. If this be so, the Question is, whether the Attorney General, who is not onlv a Barrister, but also a practising Attounev of titis Court, or the Juduch Instances to a Failure on my Part to discharge my Duty as Attorney General, and on what Cirouiul you formed that Opinion. •^dly. I beg you will state explicitly in what (!asfcsyou have known me, during the Fifteen Years that I have been a Crown Officer in this Province, retained and taking an active Pan in the Defence of any Civil Action for a "Wrong done, which Wrong ought to have been made tiie Subject of a Criminal Pro- secution, but was not, for the Reason this Report intimates, that I uas so retained V i • I I ( 1W» ) , retained by the Wronn-iloeis, aiul that tlie I'roseciitor or Prosecutors were tlKTcl)V (ii^cotiraiffil tiom applvinii; to iiic as Altoiiiey (ii'iieral. Yoii' will ()bii;;f nil' by statinn liu" i'articiilais of any Cases which have come to your Knowledge at any Period in the (xmrsc of ycur Professional Practice. 1 have, i«l ) {>{' conductiiif; Public I'roseciitions in this Province, must be taken to be the same as it was in I'jij^hinil at tlie Time np to which the Criminal Law was introtluceil. (j. What was the Mode of condnctmg Public Prosecutions in England at that Time, with reference to the llights of the English Ikir ? A. In all Matters of Uevcnue, Treason, and I'ersonal Rights of the Crown, and those under its immediate Protection, as the AHairs of Lunatics and Charities, the Crown Officers are boiuul to protect the I'liblic Rights, in the same Way as any Counsel generally retained by his Client is bound to protect his Uigbt:5. But i.i all other Mattern' in which the Crown is not so immediately concerned, as in Felonies, and in those Misdemeanors which are not prosecuted in the Crown OtHce, or by c.r officio Information, 1 have always luiderstood the Right of being emj)loyed by Prosecutors to be open to the IJar. Q. Do you think it desirable that the Practice in ibis Province should be assimilated as much as possible to the Practice of England ? A. Decidedly so ; in this, as in every thing else. Q. The Attorney and Solicitor (jeneral. being in the liabit of taking Eees to defend Criminals in Civil Actions, even when they preci'de the Puldic Pro- secution;!, do you, under such Circumstances, see any additional Propriety in securing to the liar in this Province the Rights enjoyed by the Profession in England ? A. Decidedly ; and I think it highly improper in any Crown Otticer to defend the Persons in a Civil Action for the Injury, when tiiose Persons are to be, or, for the due Ends of Public .Justice, ought to be jjroseculed criminally. Q. Do you think that such a State of Things is calculated to delrr Prose- cutors from applying to those Crown OtJicers who have engaged against them in the Civil Defence of the Wrong-doers ? A. I never would em])loy, to conduct the Public Prosecution tor the Injury I had received, the Prolessional Person who defended against me in the Civil Action. I should think that the Impressions be would have received would be so strong, that I could not but suspect (although my Suspicions might be groundless) that he woidd be influenced by them. Q. Is the Committtec to understand that you think the Ends and Character of Public Justice would be facilitated and secured by a Change of this System ? A. Certainly ; and more especially placed, as it ought to be, above every Suspicion. Q. Do you think it would be a desirable Plan to allow the Prosecutor to be ])aid bis reasonable Expences out of the District Treasury where the Trial u liad, upon Conviction ? A. I do J and I think the Prosecutor ought not to be paid his Expence ti II Conviction, unless the .Judge certifies. This, 1 believe, is in accordance with several recent English Statutes, anil I conceive it to be a desirable Security against malicious or groundless Prosecutions. Q. Do you think that if the Fines and Forfeitures in every District were paid into the District Treasury, it would be an expedient Source for the Pay- ment of the Expences of the Public Prosecutions ? A. If the Fines ami Forfeitures form a Part of the general Provincial Revenue, or the Crown was pleased to rclinciuish them for those Public Pur- poses, I think it would be very desirable indeed. Q. If the present System of Payment for Public Prosecutions were continued, what would be the Effect, as Population and Crime increase, upon the Public Revenue ? A. It would be, upon an ordinary Calculation, most oppressive ; and in that point of view I think the Expences of the Clerks of Assize, both as they are chargeable upon the Pidilic Revenue and upon the Suitors, might, with much Advantage, be done away. Tiie Duues of Clerk of Assize, as at present discharged by him, might be performed by the Deputy Cierk of the Crown, who has the Custody of the Proceedings in the Suits in his District, and who would be well remunerated by a Sum small when compared with the present Expenditure for that Purpose. It is desirable that Justice should not be made unnecessarily expensive ; l)ul. I think it most desirable that the Judges Z z should. ^ I i- ( ) 811 '^ii! should, in their Circuits, he atU'iuk'd in a Manner suited to the Dignity of their Duties and Station. Q. Do you think that the Attorney or Solicitor (ieneral could at their Pica- re take oH'tlie Hands of another Counsel a Brief in a Criminal Prosecution, put into his Hands by a Prosecutor ? A. I think not, with the Exception of the Cases mentioned in my Second Answer. Q. The Attorney (Jcneral and Solicitor General receive, the first ,i'SO(), and the secoiiil .^'1(K> Sterling per Year ; do you thin that Retainer sufficient for the Advice given to the Local (iovernnient, without Charges lor the same against the Puhlic lleveniie. //. I think so ; the Salary they receive I regaril as the Salary to the Judges for the Duties they perform. 8tl: March 1828. Mr. Justice Shcncood, Q. Do you think that the Uar in this Province has the same Right as the Har in Kngland, in coiulucting Criminal Prosecutions, and subject only to the same Restrictions ? A. I think they have the same Right, subject to the same Restrictions. Q. Have these Rights been hitherto generally claimed by the Bar, and exercised ? A, I believe they have not. Q. Do the Crown OfKcers claim an exclusive Right to conduct Criminal Prosecutions ? A. I have nexn made tlie Enquiry. % Considering that the Crown Officers are in the habit of taking Fees for the Defence of Civil Actions, out of the Facts of whicli a Criminal Prosecution must or ought to arise, do you think it rigiit that the Prosecutor should have the Power to apply to other Professional Men for the Conduct of his Prose- cution ? //. It is a Subject to which I have not given suflicient Attention to form an Opinion. Q. Do you consider that the Existence of such an exclusive Right on the Part of the Crown Officers, luuler the Circumstances mentioned in the pre- ceding Question, calculated to discourage Prosecutors from instituting a Pro- sedition ? //. I really cannot say. Q. Do you consider that the Professional Interest taken by the Crown Officers in the (Jivil Suit, tiie Facts with which they may have been thereby acquainted, and the real or supposed Prejudices which they may have acquired in the Conduct of the Suit, calculated to impair the Confidence whicti the Prosecutor or the Public ought to have in the Administration of Criminal Justice ? A. I have not had sufficient Opportunity to form an Opinion upon that Subject. Q. Do you think that the Prosecutor ought to pay the Expences of his Prosecution if he fails in a Conviction, and the Judge do not certify ? A. I am not prepared to answer that Question without further Consideration. Q. Do you think that if the Fines and Forfeitures in every District were paid into the District Treasury, it would be an expedient Source for the Pay- ment of the Expences of the Public Prosecutions of each District? A. I am not prepared to give an Answer to that Question. B. C. Beardsley, Esq., Barrister at Law. Q. What do you consider to be the Rights of the Bar in this Province, in conducting Criminal Pro.secutions ? A, I consider them to be the same as they are in England. Have ( 18.< ) Q. Hiivf these Rights hecii liitherto exfreiseil, and if not. why not ■' A. The) have heen exchisivtl\ exercisiil l)y the ( rown OMieirs, :i>' far n5 my Knowledgi extends except lit the Qinirter Sfssions. 'I "hat .Monopoly I have luulerstotid to he cl:iiiiied, and scarcely (ontested, hein^j considered' as sanctioned hy the Court ol Kinj;'s Hcnch, md therefore I should consider the Assertion of the Ilighl as hopeless. Q. Do you think the Asseition ot'tlic Ki^dits hy tlie IJar woulil he conducive to the Interests of the l»ar and of the l\o\Ac )> A. I certainly tliink it would. Nutli an Kxchision nuist he prejudicial to the Uar; and the Conlineiiient of flu" whole Province toJ'wo I'rofessional Men, against whom Prosecutors may have Prejudices, (whether well or ill tounded,) and to whom they can, in the' outer Districts, only have Access in the IVriod of the Assizes, and who are often retained in a Civil .\clion, out of which the Criminal Prosecution must arise, has, in my Opinion, a direct and certain Tenilency to prejudice Puhlic Justice. Q. Do you tliink that such a State of Things is calculated to deter Prose- cutors trom applying to those Crown OfKcers who have engaged against them in the(,'ivil Delence of the Wrong-iloers ? A. Most certainly I do. It would have that KH'ect upon me ; and I can- not hut consid .-r it would, in a greater or less Degree, have that Ktlecl upon otheis. Q. Do you think the Character of Public Justice likely to he impaired by such a State of'I'liings ? //. I certainly do, and I think it would he improved hy a Change. Q. Ought the Prosecutor to he paid in the Kveiit of i'ailing in a Conviction? //. Hy no means; it woulil iiulucc Persons, from vindictive Peelings, to prosecute, as has hei n the Case to my Knowledge in some Instances, from running no Kisk of personal Kxpence ; for in this Province it is cliarged against the Puhlic lie enue. Q. Do you think tha' if the Fines and Forfeitures in every District were paid into the District Treasury, it would he an expedient Source for the Payment of the Kxpences of Public Prosecutions? A. I certainly think it would ; and it would t'lirtlier relieve the Provincial Treasury from heavy Charges now made against it, and from un Increase, inevitable in Time, beyond wiiat this or any Country can hear. Q. Do you recollect any other Means of protecting the Public in Criminal Prosecutions ? A. Yes, many. I think the Clerks of Assize, who hu\e heen and still are young, either under Age or not much over it, do but ill (ill a Situation with so many Responsibilities as arc attached in this Province to a Clerk of Assize, who has the Custody of all Records, Exhibit?,, indictments, the Pannel of the Jury, the swearing of Witnesses and Jurymen, and other Duties, as the making up the Postea, and the Arraigmnent of i'risoriers. I have heard Dissatisfaction expressed, and have felt it myself not without Reason. I also think there should be an Improvement of the Jury Law j and tiiat the Slierifls ».|iould hold their Offices during good Rehaviour, and not during I'leasiire; and it is my strong Oj)inion, that the same Rule should be extended to the Judges. (i. What Improvement would you suggest in the Clerks of .Vssize i* A. I still hold the Opinion I have expressed in the Legislature, that the Deputy Clerks of the Crown in every District should act as Clerks of Assize, as they have the Custody of the original Papers and the passing of the Records, and arc als^; 'jctter fittecl from Age and Character. It would also relieve the Suitors from a lieavy Expence, as they are, by the Table of Fees, allowed Charges which amount to as nuich as is taxed to Counsel who is Attorney in the Cause ; and the De])uty Clerk of the Crown, from his Residence in the District, could not require such F'ees. It would also relieve the i'rovincial Revenue from the present Charges made by the Clerks of Assize in Criminal Prosecutions. 1 have heard, and have good Reason to believe, that these Youths, during the Assize, engage in gambling and other Amusements, vulgarly called Rows, as fighting and frolicking. Archibald ♦ "•♦ IMAGE EVALUATION TEST TARGET (MT-3) T // m A 1.0 I.I 1.25 t i;& nil 2.0 2.2 18 M lllim V s^- > i'iiil ( 181. ) AvcIiUhiIiI M'LctDi, A'.vy. Q. How long have you been a Member of the Provincial Bar, and wliat Offices do you iiold ? ' A. I liave been a Member of the Bar since 1813, and am Clerk of the Peace of the Eastern District. Q. Have the Members of the Provincial Bar engaged in the Conduct of Public Prosecutions as in England ? A. They have not, except at the Quarter Sessions. Q. Do you consider that the Provincial Bar have the same Rigiits in con- ducting Criminal Prosecutions in this Province as the Bar in England, and subject only to the same Restrictions ? A. 1 am of that Opinion. Q. Do you consider the Mode of conducting Public Prosecutions in England as Part of the Judicial System in that Country ? A. I do. Q. Has '^he Adoption of that System in this Province generally, and the Introduction of the Criminal Law by tlie Provincial Enactment for that Purpose, in your Opinion, implied the Existence of the same Rights of the Bar here as in England in conducting Criminal Prosecutions ? /}. In my Opinion it has; and I consider that the Criminal Law is to be publicly administered here in the same Manner as it is in England. Q. Have you ever known that Right claimed and exercised by any other Member ot' the Bar, other than the Crown Officers ? A. It was once claimed by Mr. M'Donnell, afterwards Attorney General in this Piovince; but 't was not persisted in, from some Objection then made to it by the Court. Mr. Firth was then Attorney jeneral. Q. Do you know why the Right has not been more generally claimed and exercised by the Bar ? A. I do not. It has generally been considered as the Duty of the Crown Officers to prosecute. They have hitlierto exercised an exclusive Right; and, except in the Case I have mentioned, it has never been contested. Q. Do you know upon what Ground such, an exclusive Right is claimed? A. I do not. Q, Do you think it would be an expedient Rule that a Public Prose- cutor should himself bear the Expenccs of his Prosecution if he fiiils in a Conviction, unless the Judge certifies ? A. 1 think it would be very desirable, unless the Judge should certify. Q. Is it desirable that the Practice in this Province, as to the Expences of I'rosecution, should.be assimilated, as much as possible, to the Practice in England ? A. I do not think any Public Good would result from 1:, as Prosecutors would have to pay the Expences of Prosecution themselves, by which many Persons would be deterred from prosecuting, and Criminals would not be brought to Justice. Q. how are Public Prosecutions now paid in this Province, and what the Amount for each Conviction ? ^. They are charged to the Provincial Revenue ; and the Amor.r.t for each Conviction, to the Crown Officer, I believe to be, by the present Table of Fees, Seven Pounds. Q. What would be the Efl(?ct of that System in the Course of Time, as Crime and Prosecutions multiplied, as they are in Great Britain, upon the Public Revenue ? A. It would of course be a Charge upon the Revenue, and a serious one too. I do not know the Number of Criminal Prosecutions in England ; but if the same Sum were charged agains* the Revenue of Great Britain for every Public Prosecution and Conviction as is charged in this Province, it would be a serious Charge against the Revenue even of that Country. Q. Will the Practice of the Crown Officers, in taking Fees to defend in a Civd Action Persons guilty of an Offence, to be the Subject of a Prosecution, tend to discourage the Persons injured from applying to them for Professional Advice and Aid ? A. I do not think it would. Q. Do m\ % ( IS,-. ) Q. Do >oii think micIi a IVacliio in no Way piTJiuliciiil to the Knils and Chanicter of I'libhc Justice, siipix^ing the Crown Officers to claim an ex- elusive Right to conduct Public Prosecutions? A. I do not think it in any Way prejudicial, inasmuch as no Persons are deterred f'rohi coming forward to prosecute, in cotisequencc of the Crown Officers being retained in a Civil Action arising from the same Cause. Robert Baldwin, K.si/., liarrhkr at Laxi-. Q. Are Public Prosecutions open to the Members of tiie Har generally. A. I have always undi rstood that the Attorney and Solicitor tJcnenil have claimed the exclusive Uig''.t or' conducting Criminal Prosecutions in this Pro- vince. The following Case occurreil some Years ago in the Court of King's Bench, w'nch 1 well recollect :— My Father, William Warren Baldwin, Ksq., ui the Case of the King v. Kllrod, for Bigamv, wished to proceed to Outlawry ; and lor that Purpose moved the Court for a W'rit of Exigent. The Court thereupon addressed the Crown Officers, en()uiring whetlier they consented to the Right of making such a Motion. The Crown Officer (Attorney Cieneral) said he would look into the Question, and answer another Day. On a subsequent Day, upon the Motion being renewed, the Attorney CJeiieral, .lohn B. Robuison, Esq., informed the Court, that he had lookeil into tiie Authorities, and could find no Authority against the Right to make the Motion claimed by Mr. Bald- win. I was at that Time a Student at Law only ; but I distinctiv recollect it was conceded as a Matter of Right, and not of Courtesy. The Solicitor General certainly did, at the Time, in a low Tone of Voice, suggest to the At- torney General not to give up the Right. From the above Case, I mler a Doubt ol that exclusive Right countenanced by tlie Court, and conceded by the Attorney General ; but I believe tiie Impiession upon the Bar generally is, that the exclusive Right is claimed and exercised l)y the Crown Officers. Q. Do you, as a Professional Man, consider that the Bar in this Province have the same Rights as the Bar in England in condiRviiig Criminal Prose- cutions? A. Undoubtedly. Q. Does it come within your Knowledge that the Crown Officers I'.efciul Persons in a Civil Action, out of whicli a serious Criminal Prosecution might or ought to follow ? A. I have known both of them to do so. Q. Wh;r Effect do you apprehend to follow such a Practice, with respect to its Discouragen-ent of Prosecutors so situated ? A. I tiiink it must necessarily discourage Prosecutors so situated ; and 1 feel that t!ie Parties prosecuting 'would have Reason for Discouragement ; for I think that, with the most conscientious Endeavour to do Justice, the Pro- fessional Man so situated might not be able to do it. Willingly I would never place myself in siicii a Situation ; for I siiould distrust my own Power over mvself in such a Situation, and this I say independent of any unfavour- able Iiiipiession wiiich might be made upon the Public Mind with respect to the pure Administration of Criminal Justice. Q. Do you think a Change in the System would conduce to the Interests and Character of the Bar, and the pure and unsuspected Administration ol Criminal Justice? A. I think it would conduce to the pure and unsuspected Admuiistration of Criminal Justice ; ami therefore would most certainly conduce to the Interests and Character of the Bar. , ,. i- Q. Do you think it would be desirable that the Fines and I-orteitures in every District should be paid into the District Treasury, and be applied to tiic Pay.-nent of the Expeuces of Criminal Prosecutions in each District ? A. I think it would be a desirable Mode. Thomas Taylor, Esq., of the Middle Temple, Barrister at Laxc. < ' Have the Bar in this Province the same Right to conduct Cjiminal Pro- se .itions as the Bar in England, subject to the same Restrictions ? A. I think they have, subject to the same Restrictions. 3 A Q. Do I; ,f,l I ,1 % '.ii ( 18G ) 0. Dotlu' Crown Officers in this Province claim mi exclusive Hi"lii to con- duct Criminal Prosecutions? & ■ A. They eveicise an exclusive Kiglit. Q. Under ulmt L;iw is that exclusive Right exercised ? A. 1 know of no Lrw to make the Right otherwise here tlum i( is in Q. The Crown Officers taking Fees lo defend Wrong-doers in a Civil Action tor tiie Injury, do you think it desirable the Prosecutors should exercise the Kight ot electing Counsel to prosecute criminally? A. Yes i,i those Cases I do. Q. Do you think that such a Practice on the Part of the Crown Officers, nicluding the exclusive Right exercised of conducting Criminal I'rosecutioiis IS calculated to discourage Prosecutors from prosecuting criminally ? A. I think in some Cases it might discourage. Inclosure, No. 4. Sir T ' Voik, Upper (Jaiinda, .'id June 182H. I HAVE now to request you to lay the inclosed Letters (which relate to Public Business, 111 my Opinion of the greatest Coma, ce to the Colony,) before Kis hxcellcncy the Lieutenant Governor. Not having done so in the first Instance was entirely owing to my not being sufficiently acquainted with official Forms, and not, as I beg you will assure his Excellency, with the slightest Intention ot -Any personal Disrespect. On the contrary, I conceived, that by leaving the Letters purposelij unsealed I had done all that was usual, and what was least obtrusive on this Occasion ; presuming that the Letters would not have been forwarded // any Pari of them met with his Excellency's Disapprobation. Should I not now have pursued the proper Course, may I beg of you to point out to me specifically how I am to jiroreed. I have, &c. M;:jor Hilliur, he. he. (Signed) John Wai.foli; Wilms. Inclosure, No. .5. , ' ,, „ . . , Govermiienl House, 4th June 1828. i HAVE the Honour to acknowledge the Receipt of your Letter of Yesterday which I have laid before the Lieutenant Governor, and I have been commanded by his Excellency to acquaint you, that your Letters to the Secretary of State and to Mr. Stephen will be forwarded. If tiiose Circumstances should occur to which you call the Attt-.ition, not of tins Government, but of the Secretary of State, it will remain for his Excellency to pursue whatever Course such Circumstances may appear to him to require. I have the Honour to be, Sir, Your most obedient liiimble Servant, To the lion. Mr. Justice Willis. (Signed) G. HiLMEU. Inclosure, No. 6. , '"* '. ,, , , , Vork, Upper CoiiHda,6tli June 1 828. I .MOST unequivocally declare, or rather repeat, that by leaving the Letters 1 inclosed to you ..pen, and requesting them to be laid before the Lieutenant Governor, my Object was to call the Attention oi' his Eaxellency, as well as that of the Secretary of State for the Colonies, to the whole of their Contents To Major Hillier, &c. Ctc. I have, &c. (Signed) John Walpole VVulis. ( IS7 ) ...11 '"closure, No. /. ALrHOucH, from tlu- C ominunications I iiave already made, his !• vccllencv must be apprised o nw Opinion respecting the Constitution o.' tl ■ Cour of K.ng's Bench u, tins Province, yet as I publicly declared mv Sentime s on tins .Subject .n the Court House Yesterday (the First Day of Trinity Term) the Aid o the Chief Justice ot this Province, I have again to retiuest you to acquaint the Lieutenant Governor, that in my Judgment the Con t of King's Bench, as established by the Provincial Legislature,\.annot. without an expes P n^il f! r ^.f;f"^t,^' •'"■''''' ""'^^^ '^'^ Chief Justice together with Two rontm^^ 'Hega y, were to sit on the Bench, and assume, either alone or in ;Z ini" ^^■'t'V^''^"^''''.'" P"'f'5 Judge, those Powers which are delegated, according to my Construction of the Act, to the Chief Justice, together with he 1 wo I uisne Justices, and not to any One or Tuv of them, particularly without tlie Presence ot the Chief Justice, f shall, however, await his Excelkncy' Commands on this Subiect. In the meantime I am and always shall be legdfy perfoJm "^' ''* "" ^^''^''^'^'' ""^er existing Circumstances. I can Major Hillier, &c. &c. rSi Members of tlii' Frott'ssion l)y wlioin tin; Application was made to me, on the 17tli Ultimo, wliicli 1 inclosed to you, my Letters of that Date and your Answer of Yesterday, under the Impression that nothing tends so nuicli to prevent both public and private Inconvenienci- and Misunderstanding on all Occasions as Candour. 1 have, kc. Major Hillier, I'rivate Sec. ^c. «((;. (Signed) JoilN Wai.POLI; WiI.LI.S. Inclosnre, No. S. May it please your Excellency, V'"-'^. 7'1« April 182H. I AM siuc, Sir, you will pardon me in immediately addressing your Kxcel- lency on a Subject so important as you will feel the present to be — I mean the intended Absence of the Chief Justice from the Province, Two Judg'es only sit. Many Motions of the utmost Importance to Faril^.s in Court may be lost for ever, (as a Client of mine heretofore previously expe- rienced under similar Circumstances.) when the .ludges happen to be divided in Opinion. On such Occasions the Counsel making the Motion usually loses its Benefit for his Client, however just the Object of it ; the ojjposite Tarty being at liberty to proceed. Your Excellency will reailily |)erceive, that I could not presume to speak to a Judge on a Matter of his genera! l)uty ; and that, however inconvenient or injurious to my Client such an Event ftlic Presence of Two Judges only) may be, yet it forms no (iround of usual or legitimate Application to Court or to a Judge. I therefore feel it incumbent upon me, as a Barrister generally, and a Counsel particularly engaged, to apprise your Excellency of the Public Inconvenience likely to accrue by the early Absence of the Chief Justice, and trust that your Excellency will not only pardon the Intimation, but also be pleased to suspend the Leave ([if given) till after Easter Term next. Nothing can be further from me than a Wish to subject the Chief Justice to a Disappointment, which this probably may be, for a short Time ; but I should err still more seriously, did I neglect my Client's Interests, by omitting on tins Occasion to address your Excellency, which I do with perfect Deference. I have the Honour, &c. (Signed) W. VV. Baldwin. (answku.) Dear Sir (iovernmeni Hlm^e, VdiU, IHUi April \liW. The Lieutenant (iovernor, as I have already ac(piainted yon, made a Com- munication to tiie Chief Justice on the Subject of the Letter which you addressed to his Excellcicy some Days since. I am now to inform you, that in reply the Chief Justice 'stated to his Excellency, that he w;is not aware of any Case now before the Court that can occasion any Difference of Opinion between the Two Judges who remain on the Bench; and moreover represented that the State of his Lealth is such as to preclude all Hope that in the Event of his Departure having been delayed he would have been able to attend to his Duties on the Beni'li. I have, &c. \v. w. liiiiciwin. Esq. (Signed) (J. HfLMKn. Dear Sir, I-'CitI Oil, Inclosed I send you a Copy of my Letter to his Excellency, wi Mr. Secretary Hillier's Answer. Mine being written for Public Purposes, can have no Objection to your using it as sucii. with I 30tti Mn-- I S^. I am, dear Sir, &c. (Signed) W. W. Baldwin. i i ^m ( 189 ) N. U. — I kiunv iiotliiii^ of the abuvo CoiifsiioiKloiK't' until alter Kaster Tt'iiii, when 1 was iiilbrnieil of il by Dr. Baldwin, wIilmi conversing on the Inconve- niences that had arisen in consequence of the Absence of tlie Chief Justice. Dr. Ualdwin is the Treasurer of tiic Law So<;iety, and, I believe, the Senior Barrister of the Court. Inclosnre, No <). COPY of an Opinion delivered by Mr. Justice Wii i.is on tlie Constitution of the Court of King's Bench. \^For this Document vcf /;. 67.] Inclosure, No. 10. A Statement of tlie Names of tiie Judges of the Comt i>{' King's Bench actually present in ( ourt at tlie several Terms since its first Constitution. \_For this Document see p. IO7.] it No. 12. COPY of a Letter from Mr. R. W. Hay to Mr. W n.i.is. Sir, Downing Slri'L't, London, .iOlh .Iiilv 1828. I AM directed by Secretary Sir George Murray to acknowledge the Receipt of your Letter to him, dated the '. ■ of June last, inclosing various Docu- ments respecting the Manner of conducting Criminal Prosecutions in Upper Canada, and respecting the Competency of the Court of King's Bench to act in the Absence of the Chief Justice. Sir George Murray directs me to acquaint you, that it is a settled Rule in this Department of Government to confine the Correspondence of the Secretary of State upon Subjects connected with the Administration of a Colonial Government to the Officer administering the Government of the Colony. He must, therefore, decline engaging in any Correspondence with yourself on the Subjects which you have brought under his Notice. Tiie Lieutenant Governor is in Possession of the Views entertained by His Majesty's Government upon those Questions, and will make such Conimunications upon them to yourself as he may deem proper. I am, however, instructed to remark, that Sir George Murray lias read with great Regret a Passage in one of your Letters, from which it ajipears tl at on the 3d of May you had formed a Conclusion as to the Incompetency of the Court to act in the Absence of the Cliief Justice; while it appears that your earliest Communication on the Subject to tiie Lieutenant Governor was' not transmitted till the 3d of the following Month. It is at least to be lamented that his Excellency was left far a whole Month in Ignorance of an Opinion involving practical Consequences of sucli extreme Importance to the Peace and Welfare of the Province at large. I have, &c. John \A'. U'lllis, Esq., &r. Upper tanada. (Signed) R. W. Hay. rti No. 13. COPY of a Letter from Mr. Willis to Mr. Stephk.v. My dear Sir, V.irk. Upper Canada, ;iOtli June 1828. I LONG since informed you of my Opinion respecting the Constitution of the Court of King's Bench, as established in this Province. The inclosed New.spaper contains the Substance of my public Declaration respecting it, the first Day of last Term (the l6th of June). On the 17th of June I wrote to acquaint the 3 B Lieutenant ! ■ ! I ( 1!M/ ) Lieutenant Governor of the Ouiiiion I liuil delivered, statin^■ at the ianieTime, that, in my Opinion, 1 sljouid be aclinj,- illegally were I to sit on the Bench, and assume, either alone or in conjunction with thu other I'uisne Judge, the Powers which are delegated Taccording to my construction of the Act) to the t'hieC Justice together with Two Puisne Justices, and not to any One or Two of them, particularly without the Presence of the Chief Justice. I added, that I slioidd however await his Kicel/e?ici/' s Coimnauds on this Subject J and that in the meantime I should be alwa\ s most desirous to dis- charp- such of the Duties as, under existing Circumstances, I could legally perform. On the same Day I again wrote, sending a Copy of my Opinion to the Lieutenant Governor t!ie iMoment it was finished, and stating my Fleadiness to act in any way I legally could for the Furtherance of .Justice. On the 2Hth of June I received an official Letter, stating that his Excellency had perused ,ny Opnnon, and should deem it necessary to bring the Matter inider the ("onsideriUion of Mis Majesty's (Jnver'nnent ;" and that, in Reply to that Part of my Letter of the lytli in which 1 stated I should await his Kxcel- lency's Connnands, that his K.rcelLncij Jdt it olwious that the (iovernment could not require me to art in a Manner which I considered, in my Opinion, illegal. On the '^AU of June I received a Letter from the Executive Council,' asking (with reference to the Opinion 1 !iad delivered on the Kith, and the Letter of the lyth, stating my Willingness to disciiarge any Duties I could legally perform) for their Infbrmation any Explanation I might be pleased to ofier respecting the Duties I contemplated, as well with regard to Term and Chamber Business as with regard to the Circuit Courts, including of course the Trial of Records emanating from the Court of King's Bench, whether containing Pieadings of the present or any preceding rerm,' ami whether passed before or since " the Departure of the Chief Justice." In answer I imme- diately addressed a Note to the President of the Executive Council saying I should " have much Pleasure in affording the utmost Expi.anatiov in my " Power on the very important Topics to which h. had referred, at as early a ♦' Period as the Magnitude of the Enquiry would permit." The foIlowin<>' Day (June 2ti) I received another Note from the Council, requiring an c.rnlict't Declaration as to which, if any, of the Duties enumerated I was prepared to discharge; and although 1 i.mmediately sat down to ans\\u- the Note, before any Answer could arrive the Council was dissolved, having previously reported to the Lieutenant Governor, who accordingly, as it appears, signed a Commission removing me Jrom the Office of a Judge of this Pnvince, to which I was fin a great Measure TiiaovoH youit Lvstru.vIentality) appointeu nv His Majesty. Ihis Commission, together with a Letter assigning the Reasons of it, were put mto m^ Hands by the Secretary of the Province on Saturday last (June 28). I send you a Copy of my Answer to the last Note of the Executive Council, and also a Copy of Major Hilher's Letter accompanying the Commission for my ^niotioii ; and 1 shall in a few Days send all the Correspondence, together with a letttion, to His Majesty in Council, on the Subject. Immediately on the Receipt of this Commission, or Release rather, I wrote tJie followiiiff Note to the (jovernor's Office : " '*^"'' . L'rfiliJune i8-28. " 1 beg to inform the Lieutenant Governor, that I protest against the Legality " of my Suspension, particularly as it is admitted that his Excellency the " Lieutenant Governor (according to your Letter of the 2d of this Month ) ''feels It obvious that he cannot command 7ne to do any Act which I consider " ILLEGAL. 1 request Leave of Absence may be granted to me by those dull/ " (jualified, until His Majesty's Pleasure respecting mv Conduct be ascer- " taineil. •• To Miijiir Hillicr, I'riviitu Secretary, &c." ., '^"V'V'; ^m''?*' ''itI'L'ito received no Answer. I have been insulted on the Bench, hbeiled ni a Paper under the Controul of Government, vilified in the Lxecution of my Duty, and threatened so as to be put in Danger of iny Life by tlie Clerks of the Attorney General, and amoved from Office. I brought ■.ay Jamily here with the Expectation of ahuost double the Income I have been paid, incurring an Expence of more than £\,5Q0, calculating on the :>alary 1 was to receive, and on a permanent Residence in this delightful Country. m ( IMl ) l.ouiitry. I still liope this may bo realized. 1 sitall leave Ladv Mnry Willis and our Child, tofjether with mv Sister, here, until I return from Kngland, whither I shall proceed iis speedily as 1 can, to demand (and I am sure nut in vain) Enquiry and Justick. My Crimes have been, fieing sent from England, and doing my Duty. The whole Country are up in Arms about it, and Fetitionn and Deputies are talked of in all Quarters. I regret exceedingly that any such fearful Commotion should take place at this Period (the Eve of a General lOlection) ; and / really am most apprehntsiie ,,f the Consequences. English Judges, English Law Officers, and English Laws altogether, would put a stop to II the Mischief I am sure I shall not ask for |)ecuniary Kecompence without receiving it from His Majesty's Government. Recompence for my mental Sufferings anil the Anguish of my I amily, and for the Fears they hiive long entertained for my I.ijb, I can never"obt2in. Will you have the goodness to lay this Letter (long and agitated as it is by the Feehngs which now govern me) before the Secretary of State ; and further oblige me by writing to me at my Brother's, 35, I'ark Street, Hath, («n the Subject. I obtamed Permission to give the utmost Publicity to the whole of my Correspondence with the Local Government ; but as / am sure it would tend to increase the present alarming Excitement, 1 shall endeavour to forbear doing so (at least for the present), submitting rather to unmerited Calumnies, tban to be even the remote Cause of inflaming the already greatly irritated Minds of the vast Majority of the Province on this Subject. All the Corre- spondence will be forwarded as soon as 1 cun get it copied. Believe me, my dear Sir, Yours, &c. &c. James Stephen, Esq., SiC. &... (Signed) .loHN WaLPOLE WlLLIS. p. S. I shall not mention this Business to the many kind and very influential Friends I have the good Fortune to possess, (who, I am sure, if necessary, would even carry it to the highest Quarter,) till I hear more from you about it. It would be very gratifying to Lady Mary Willis also to hear from you, as she would do so earlier tlian from me. Meetings are called, and I am receiving fVoin all Quarters the utmost Assurances of Regard and Respect, merely for having done Justice, which they say will not noiv be obtained. A Deputation from the County of Lincoln, in the District of Niagara, the most .'^opulous and wealthy County in the Province, has just been here, offering to return me as their Member. I of course declined, for a Judge has no Business, in mij Opinion, -with Politics. General Maitland mm; I understand, says I wrote irritating Letters to him, idiich caused him to remove me. lie however admitted to Lady Mary Willis, in the most unqualified Manner, that I had never been guilty of the slightest Disrespect. I am quite SURF, unless something be done speedily, this will not long remain a British Province. The People al) are most truly and devotedly attached to the British Government, but du not like the pieseiit State'of Things with respect to the Officers of the Local Government. The Executive Council consisted, I am told, of James Baby, Inspector General ; CJeorge Markland, a Storekeeper at Kingston ; Peter Robinson, Brother of the Attorney General ; and Jame,-, Macaulay, a Half Pay Lieutenant and an Attorney of the Court of King's Bench, who.se Appointment as a Judge by the Local Government was superset'.ed by my Arrival, and who now is again, I understand, to be ajjijointed. The Attorney and Sohcitor General, I have Reason to believe, were concerped in tiiV Libel on me as a Judge. / sH (>//' in about a Fortnight. , !•;: I No. 14. COPY of a Letter from Mr. Willis to Mr. Secretary Huskisson. Sir, York, UpiRT Canada, 1st July 1828. The Opinion I have long since made you acquainted with, respecting tlie (Constitution of the Court of King's Bench in this Colony, now is given as the alleged I I ( ly^ ) atteiitd Ilfason Wn m> AiMolioii hy the I.tual (JoviTiinu'iit (ui tin- >j(it|, In.staiit horn that Stat on ihf lieiicli in tins I'n.vnue t(. which I hail tlu- Hononr ol' hfinK i'PPcinlcd by His Majesty. I have to request your particular Attention to the nulosed Corresponilence, ami especially to that Tart (>f' it wl -ch relates to my Removal. My Opinion, however, still remains /«/n as to tlio Legality of such Increase, ami viewing with anxious Concern tlie r'.vils resulting Ironi your Coiuliul, which threaten to increase, to the great Obstruction of .lustice, ami Injury ami Im ouxcniem-e of the Public; sensible also of the absolute .\eces>ity of the Circuit Courls l)eiug regularly held, the I'ublic having a Itight to expect the Trials to proceed as usual ; yet, wanting Time to commuiucati- witii the Parent (!i>\enunent, lully believing that your abstaining from the f;ill l)isch..rge of your I'ublic Duties was unauthorized, strongly (hsapproving, also, in otiier llespecls of the Course yon liave taken throughout — the Mxecutivi' C«.imcil report, that tlu'v with Pain feel it an incmnbent Duty, due to the King's (Jovernment and to the Country, to reconmieml your llemoval from Ollice until llis Majesty's Pleasiue be known, in order lo enable th.' Lieutenant (iovernor to supply an ellicicnt Court, that there may be no Impediment to the Administration of Public .Justice. I am to acquaint you, that the Lieutenant (Jovernnr laments exceedingly the Necessity of tl'is Step ; but he reflects with Satisfaction, that it is o|ien toyou to appeal to the King in Council as to the Sulliciency of the Cause ; and his '»!'• vommaiuls me to assure you, that it would not, however justiliabli-, j)lace, without a previous Ueference to His Majesty, if the Circum- • . 'icli the Superior Court of the Province is placed by tiiese new and Vrocecdingi" had rendered the Delny possible. 1 liave, ^c. Ml; I'alpolc Willis. (Signed) (i. IIii.i.ir.K. Hoi.x jle Sir, \iMk, t'pper Oaiwda, .'fitli .lunc Im'H. Having in Ea tcr Term joined in an Order of the Court of King's IJench, and also delivered my Sentiments in the Causes then arj'ueil before Mr. Justice Sherwood and myself, following, incaiitiomij/ as I admit, the Practice which had been previously adopted, when convinced of the Krror of such Proceeding, and in order to rescind, so fiu' as I was concevued, the Order I had joined in, and to declare what 1 considered to be the Kflect of my Judgments, I li'lt myself Icgalljj, jiidicialltj, and reiigiously bound, by virtue of that Oath which was taken by me in your Presence, when I entered upon tlic Otlice to which His Majesty has graciously apj)ointed me, to take the earliest legal 0|)portunity of declaring, not only my Opinion, but also my firm Conviot'')n, (which must remain till over-ruled,)thattlieCourtof King's Bench, as established by the Legis- lature of this Province, cannot legally sit in Hank, unless the Chief Justice, toge- tiier witli Two Puisne Justices, j)reside in such Court. It is a Coiut of statutory Creation; and all or every of the several Duties permitted by the Legislative Enactments of the Province (with which the Honourable Executive Council, as Legislators, must be fiilly accpiainted,) to be discharged by One Juilge, or One in conjunction with the Chief Justice, 1 shall always be rcaily to perform. The precise Nature of those Duties (in case there be any Question respecting them) 1 can only give my Opinion upon Judicialli/ when Icgal/jj before me. It is not for Want of that Respect which no one feels more than 1 do for the Ho- iiourabL Executive Council, that I do not now go more fully into the Question, But the Comments on the extra-judicial Opinion first given in the Case of Ship Money vill not be forgotten. In tiie Opinion of a most eminent English .Jurist, (an Opinion expressed in a Work of such Celebrity as to be almost tantamount to a Decision — I allude to that of the celebrated legal Anticpiarian and Editor of Lord Coke's Comments on Littleton,) " However numerous and " strong the Preceilents may be in favour of the King's consulting Juilges in " Questions in which the Crown (as I conceive in the present Case; is mate- " rially interested, it is c Right to he understood with many Exceptions, and " such as ought to be exercised xiitlt great Reserve, lest tiie rigid Impartiality " so essential to the judicial Capacity should be violated. The Anticipation " of judicial Opinions in Cases actually jjcnding (as I think is the Case here) " should be particularly guarded against ; and therclbre a wise and upright S C .Judge ii Jiji f ■ »! s- ( m ) " Jmlgo will cv<;r lie c-uutioUH how he answers Questions, litra.juduidllif, of •• such ii Tcndt-ncy. So fi.r one nay venture to tiuaiity tlie Right oltlius beinir '• required to do m), because even the House ot' Lonls have declined lakinL' " the Opinion of the Judges Cor Ueasons of this Sort, though »heir Attendance " on that IJody is eordessedly for usi-isting the Lords in Matters of Law." (See Fortesc. Rep. .')H!., .'jK3.) IJiuler these Circumstances, I most resptcttidly hubnut, prevutusly to enferinB further into the Subject, wliether I can s LEOAi.i.v iiKQUKSTKO HO to (lo by the IIiiHuuni/iL- the Executive Council f I nnist ndil, my private Wish is lo give the fullest Information ''» KxwiUive Coiinc I OlfiiT, Sork, Jfilli June IH2S. j iiAvi; to acknowledge llie Recei|)t of your Lette. of Yesterday's Date With relerence to my Conmnniiealiou. I am recpiested by the Council to state, that their Desire u to receive an explicit Diclaration as to whirh if any of tlie Duties enumerated by me you me prepared to discharge j and 'to adil,' that the Public .Service recju res your early Ansv.r. Th. Hon. Mr. Ju.,ioe Willi.. (Signed) .1. HAi.v.'pfeshlhig Councillor. '^"'' (iuvcrnmcnt House, 2;".tli June I82M. HAVE submitted your Letter of this Date to the Lieutenant Governor anil am directed to observe to you, that whenever his Lxcellencv may deem it necessary to animadvert on the Conduct of any Officer of this Colony he ,vill of course, choose his own Time, and use the proper Channel for that Purpose ' I .|m further to add, that you were fully informed of the natural aiid established Course for communicating with the Head of the Government On your Deinand, obviously originating from a very different Course of i'roceedini.- his Lxcellency purposely forbears to ccimmcnt. ^' 1 have the Honour to be, Sir, Th-Hn,. M. . .• wii Your most obedient hunble Servant, Ihe Hon, Mr.Jintue Willm. /■«Jln.no,l'4 n ir (aigneti; u. IIii.lieh. , • .... Vork, 25tli June 1828. infbrmed This^Fv" }l" "'"^V'^r'^"' ^^»"'"='-. tl'at I maybe immediately .formed I Ins L.vcellency the Lieutsnant Governor has any and what Complaint to make respecting my Public or Official Conduct. 1 nave the Ifonoiir to be, Major Hi!lier.&c.«,c. Your very obedient Servant, ' (Signed) John Wali-ole Willis. Sir T ♦ , , , ^■'"•1<. I'i'perCanmh, 2Jtl. June 182H. I HAVE to acknowledge the Receipt of your Letter of this Date ; and to inform you, that I shall have much Pleasure in affording the utmost ExplLa" Tiov in my Power on : le very imponant Tonics to wldch yoJ h?ve , efbned at as early a Period as the Magnitude of the inquiry will permit. ' -r, „ , , , I l">''e the Honour to remain, Pre,,iden?oVttEx"c':lriveConncil ^"^^ re.s|,ectf\.lly, your very obedient Servant, &C.&C.&C. ' (Signed) John V'ali'ole Willis. U i- II , , '•^'"'e'"'''e('ouncilOirice, York, 25tlrJune 1828. Council t'lHSnt's^r'*7''l"r M">'""^f ^^i"« ^^^^^red to the' Executive council tiH present Slate of His Majesty's Court of Kin-r's Bench acrom panied, amongst ether Documents, with your Letter to his Excel W^^ V^Ze Secretary cf the 17th Instant, in -.vhich'you state that, " you ar"?nd always " shall ( W ) •♦ .shall lie most ilcsiroin to ilisfharjjt- such ut the Diitiis a», imdor cNist.iig " Circiiinstuiices, you can It-fjally jjoifonii ;" and the (JovornmtMit having; uvcr hetn of Upmion. that the ( 'oiirt of' Kiiiij's IK uch has hitherto been IcgiJIy held, and tin; Duties of tlu!.Jndj;es will iniderntood; I am (iireeted by the Coutieil, with lelLience to the Opiiiion piiiiliciv il.li- \ereil hy you o.j the HJlh Instant, to re(pi'jst, Co.- tluir Inlitrniation, any Kxplanaiions you may i)e picascil to otl'er respecting the Duties you eontem plate, as well with regard to the Term ami Chamber Husiness as to the Cireui lit Courts, including, of course, the Trial of all Keconls inianating from th-^ King's Uench, whether containing I'leailing.i of tiie present or ar.y nreceiling Term, and whether passed bel()re or since the Departure of the Cliiet Justice. I have the Honour to be. Sir, Your mojt oledieni humble Servant, (Signed) J. lUitv, The lion. Mr. Jusiire Williii. Presiding Councillor. Sir, Vork, ll|>|it'r Cniiuilii, 31st June IH'.'S. I ii.vvF, ventured to lay before those Members of the Profession by v.hom the Application was made to me on tlie 17lh Ult. which I inclosed to you, my Letter of that Date, and yom- Answer of Yesterday, under the Impression that nothing tenils so nnich to prevent lioth public ami jirivate Inconvenience a '1 Misunderstanding as Candou'". I have the Honour to 'emain. Sir, Your very obedient Servant, To Major Hillier, &C.&C. (Signed) .foiiN W.^LPOi.i; \Vii.i.i.s. Sir, Government Iliiuse, 20th June 1S28. With reference to your Letter of the 13th Insiant, the Lieutenant Governor has directed me to acquaint you, i-hat he has perused the Opinion delivered by you, and will deem it expedient to bring it under tlie Consideration of His Majesty's Government. In reply to that Part of your Letter of the lytli Instant in whicii you state that yoi: shall await the Lieutenant Governor's Co:nniands, I am directed to inform you, that his Excellency feels it to be obvious that the Government cannot require you to act in a Manner which you have stated to be, in your Opinion, clearly illegal. I have the Honour to be, Sir, Your most obedient humble Servant, TheHon. Mr. Justice Willis. (Signed) G. HlLl.lKn. Sir, Government House, 18th June 1828. I HAVi; the Honour to acknowledge the Receipt of your Connniaiications ot Yesterday, which have been duly submitted to his Z..cellency the Lieutenant Governor, I have the Honoin to be, Sir, Your most obedient l,,mble St ivant, The lion. Mr. Justice Willis, &c. (Signed) G. HlLI.IER. Sir, York, Upper Canailn, 1 7th June 1828. I HAVE inclosed, for the Information of his Excellency the Lieutenant Governor, a Copy of the Opinion whicli I delivered Yesterday. I have been prevented, not iiaving a regular Clerk, sending it sooner ; and I beg most particularly to call the Attention of his ^xcellenry, not only to that Par* of it which relates to the E.stablishment of the Court by the Provincial Legislatu.e, but also to the British Statutes respecting Leave of Absence, to which I ha\e referred in my Opinion, and to the Cot'sequences in case tiiose Statutes have not been strictly complied with, so far as tliey may I'.Iect the present State of the Court of King's Bench, and the general Administration of .Justice in this Colony. I also inclose, for the same Purpose, a Copy of the Minutes of the Clerk of the Crown, and a Copy of an Application left with me by some of the the Members of tlic Bar this Day, with whicli I have so far coniplieil as to direct a Copy of my Opinion to be made for them, and to express my ;ieadi. ness to act in any way. that / kgallij can for the Furtherance of .liistice. I iiiiormed Mr. Justice Sherwood, so long since as tlie 'M I'Uimo, of the Conchi- sion I hatl come to on tin's very important Subject. May I re(iuest the Inclosiires, after perusal, may be transmitted to the Colonial Secretary. I have tile Honour to be, Sir, Your obetiicnt Servant To Miijor Hillier, &,•. >«cc. (Signed) Joiiv Wai.poi.i; Wilms. Sir, Vork, U|)i)cr Ciuiiidii, 17tli June 1828. I Although, from the Communications I have already made, his Excellency must^be apprised of my Opinion respecting the Constitution of the Court of Kuig's Bench in this Province, yet as I publicly declared my Sentiments on this Subject in the Court House Yesterday, (the First Dayof'Trinity Term,) in recull- ing an Order, so far as I was concerned in it, which was made without the Aiil of the Ciiief Justice of this Province, I have to request you again to acquaint the Lieutenant Ciovernor, that in my Judgment the Court of King's Bench, as established by the Provincial Legislature, cannot, witiiout aii express Violation of the Statute, be held, unless the Chief Justice together with the Two Puisne Justices of this Province preside therein ; ' think, therefore, I should be acting illegally were I to sit on Bench, and assume, either rt/oMt or in conjunction with the other Puisne Judge, those Powers which are d(;legated, according to my Construction of the Acts, to the Chief Justice together with Two PuTsne Jus- tices, and to any One or Tko of them particularly, without the Presence of the Chief Justice. I shall, however, await His Excellency's Commands on this Subject. In the meantime I am and always shall be most desirous to discharge such of the Duties as, under existing Circumstances, I can legally perform. I have the Honour to remain. Sir. ,„ „ . „.,,. Your very obedient Servant, fo Major H,ll>or, ftc. &c. (Signed) JoiiN Wai.i-oi.i^ Wri.i.is. Dear Sir, York, Upper Caiiiulu, lHiIi.Iuiie I8l'8. In answer to the written Application made by you, on behalf of yourself, Mr. Washburn, and Mr Robert Baldwin, as Attornies and Barristers, to me, as One of His Majesty's Judges of the Court of King's Bench of this Province Yesterday, I beg to assure you, and to request you will state, in the most public and unequivocal Manner, that 1 am and always shall be most willing to act in any way that I legally can for the Furtherance of Justice. I have already apprised his Excellency the Lieutenant Governor, and througii him to his Majesty's Principal Secretary of State, of tiie Conclusion I have come to respecting the Constitution of the Court, of the Improiiriety, iu my Opinion, of Its being held, unless the Chief Justice together rev/// Txco Puisne Justices preside therein ; and 1 now await his Excellency's Command on the Subject. 1 have directed a Copy of the Opinion I delivered on Monday, when recalling the Order, so far as I am concerned, which I concurred in last Term, during the Absence of the Chief Justice to be copied ; and when it is completed I hope ill an Hour or Two, it shall be forwarded to you. I am sorry the Length of it prevents me .ending a Cojjy for each of the Applicants. I remain, dear Sir, Your faithful and obedient Servant, II. w. lialdwiii, Esq. (Signed) John Wai.poi.ic Willis. May it please your Lordship, The Opinion delivered Yesterday by his Lordship, Mr. Justice Willis, on the present State of the Court of King's Bench, is of such Importance to the Public and so deeply involving ourselves in the Discharge of our Professional Duties to our (Jients, that it becomes indispensably necessary with us to consider the Matter Matter of that 0|)inioii most matori.'illy. reeling that such proposal! Consiilera- tioii may be imperfect, witiiout also iiearing the ilehberate Opinion i.f his Lordship Mr. Justice Sherwooii, we beg leave to express our Hope that we shall hear such his Lordship's Opinion also. It would be very satisfactory to us to be favoured with written Copies of these Opinions ; yet knowing this to be in the Option of your Lordships, we trust you will excuse this Fart of our Application, if at all unpleasant. We do not wish to trust to the hasty Notes taken by ourselves or the Editors of the Public Prints. We would not willingly press upon your Lordships with any inconvenient Haste, but under the present ( cumstances Time is not at our Disposal ; and therefore trust, that if his Lordsl-.ip Mr. Justice Sherwood should decline an early Delivery of his Opinion, so very desirable to us, that ho would he pleased to withhold his Judgment in any Matter wherein our Clients may happen to be concerned, until, as their Counsel, we be better advised as to the Course to be adopted. (Signed) H. W. Baldwin. S. Washburn. IloBF.nr IJAi.DwrN. Trinity Term, 9th Geo. 4th, Monday, I6th June IS'iS. Present the Honourable Mr. Justice Sherwood and The Honourable Mr. Justice Willis. Upon the Judges taking their Seats, Mr. Justice Willis stated, that by the Provincial Statute (34 Geo. 3. cap. 2.) which established the Court of King's Bench in this Province it is enacted, that the Chief Justice of the Province, together with Two Puisne Justices, shall preside in tiie said Court ; that the Chief Justice being absent, in his Opinion Two Puisne Judges cculd not legally constitute the Court ; that therefore he should decline interfering, except in such Matters as he could dispose of as a single Judge of the Court. Mr. Jus- tice Sherwood ordered the Court to be adjourned till To-morrow at 12 o'Clock, against which Mr. Justice Willis protested, as, in his Opinion, there was no Court to adjourn, and thereupon withdrew ; when Mr. William Henry Draper, Esq. was sworn and admitted a Barrister, and the Court adjourned, by Order of Mr. Justice Sherwood, till To-morrow at 12 o'Clock. Ordered, by Mr. Justice Willis, That the llule of this Court made in Easter Term last be rescinded so far as his Authority is concerned, the same having been granted, in his Opinion, contrary to Law — the Court not being full at the Time of passing the same. Sir York, Upper Canada, 5lh June 1828. I MOST unequivocally declare, or rather repeat, that by leaving the Letters I inclosed to i/ou open, and requesting them to be laid before the Lieutenant Governor, my Object was to call the Attention of his Excellency, as well as that of the Secretary of State for the Colonies, tu the whole of their Contents. I have the Honour to be, Your very obedient Servant, Major Hillier, Private Sec. &c.&r. (Signed) JoHN WaLPOLE WiLLIS. Sir, Government House, 4th June 1828. I HAVE the Honour to acknowledge the Receipt of your LeUer of Yesterday, which 1 have laid before the Lieutenant Governor, and I have been commanded by his Excellency to acquaint you, that your Letters to the Secretary of State and to Mr. Stephen will be forwarded. If those Circumstances should occur to which you call the Attention, not of this Government, but of the Secretary of State, it will remain for his Excellency to pursue whatever Course such Circumstances may appear to him to require. I have the Honour to be, Sir, Your most obedient humble Servant. J'lic 11(111. Mr. Justice Willis. (Signed) (jr. HiLLIKK. 3 1) I ( 198 ) Sir, York, Upper Canada, 3(1 Jiiiio 1828. 1 HAvr. now to request you to lay the inclosed Letters (wliicli relate to Public Business, in n.y Opinion of the greatest ("onscquenco to the Colony), before his Excellency the Lieutenant Governor. Not having done so in the first Instance was entirely owing to my not being sufficiently acquainted with official Forms, and not, as I beg you will assure his Kxcellency, with the sNghtest Intention of any personal Disrespect. On the contrary, I conceived ihat by leaving the Letters purposely unsealed I had done mII that was usual, and what was least obtrusive on this Occasion ; presuming that tiic Letters would not have been forwarded if any Part of them met with his Excellency's Disapprobation. Should I not now have pursued the proper Course, may I beg of you to point out to me specifically how I can proceed. Your obedient Servant, Mapr Hilliir. (Signed) John Walpole Willis. Sir, York, Upper Caiiiula, I'2tli .\pril. As Judge of Assize, Yesterday, I stated that the Law Officers of the Crown (who have hitherto always conducted, and who are paid by the Public for all Criminal Peoceedings in this Province,) were, in wy Opinion, bound to prose- cute for all Crimes which they know have been committed, of their own Accord ; but the Attorney General, certainly not in so courteous a Manner as the Bench is usually addressed in England, disclaimed that Duty, admitting, how- ever, that he and the Solicitor General were tlie Public Prosecutors. I then said, the Question must be decided by the Government, and as nothing can be niore necessary for the due Administration of Justice than that the Source from which all Public Prosecutions must originate should be distinctly iniderstood, J do not think I should honestly discharge the Duties of my Office did I not respectfully submit this Matter to your Excellency's Notice. I have the Honour to remain. Sir, Your most obedient and very humble Servant, To the Lieulfiiaiit Goienior of U. C. (Signed) JoHN WaLPOI.E WiLMS. Su', York, Upper Canada, Nth April 1?2,M. I AM sorry to have Occasion again to appeal for a Decision respecting the Duties of the Attorney General of this Province, who now repudiates (^as 1 understand him) what he stated on Friday last, namely, th.it Criminal Prosecutions in this Province are, as in England, open to the Bar ; and he has this Day in open Court further asserted, that as His Majestij's Attorney (jeneral for this Province, he is answerable for his Conduct in his legal Capacit if, not to any of His Majesty's Judges of this Colony, but -ly to the King's (iovernment. If this be so, the Question is whether the Attorney General, who is not only a Barrister, but is also a practising Attorney antl Officer of theCourt, or the Judge who presides, is to be superior? I had Occasion publicly to notice the great Mildness of the Criminal Law of England, and the Admi- nistration of it there, as // ?ww stands, to that which is admitted into this Province, which is what it was in England in 1792 ; and I now cidl your Excellency's Observance to the great Improvements since that Period," and especially those recently made by the Right Honourable the Principal Secretary of State tor the Home Department. A Sense oi' Duty, attached to the Dignity of my Office, compels me, however reluctantly, to add, that the Language of the Attorney (ieneral was such, that I could only tolerate it from his being an Officer of Government, antl from iuy Wish on that Account not to obstruct the Public Business. In this r;,,itroversy I entirely disclaim all personal Peeling ; I do not, nor can I ever condescend to entertain it in any Public Measure ; but the Crisis has now arrived at which it must be determined how tTiminal Prosecutions here are to be conducted, and how far the Law Officers of the Crown are amenable to the Judges of this Province. I have the Honour to remain, with the greatest Respect, your Excel- lency's most obetlient and very munble Servant, The Liciitciiam Uovcriior, Upper Canada. (Signed) JoHN WaLPOLF. WiLLIS. ( m ) Miiy it please your Lorclsliip, YorK i3d June 1828. The learned Opinion delivered by the Honourable Mr. Justice Willis, upon which we have bestowed an anxious Consideration, renders painfully certain, in our Inimble Judj^ment, the Apprehensions entertained respectinjr the ilue Administration of Public Justice. Unanimity among the Judges is important, it" not essential to the satisfactory Discharge of the Duties pertaining to any Court. When such Court is tlie only one of Superior Jurisdiction in the Country in which it is established, the Importance of sucii Unanimity, not only to the Court itself, but to the Country at large, must necessarily be greatly increased, and the Want of it the more felt as a Public Evil ; and when tiiis is attended with an Impossibility of determining between contending Ojiinions. and Suitors thereupon fail, such Evil ajjpears to have arrived at its greatest pos- sible Extent. Long before the Question as to the legal Constitution of the Court arose, or was (as far as we are informed) even thought of, much Inconvenience was experienced by the occasional Absence of Judges, and especially of the Chief Justice ; and such was the Apprehr.ision of the practical Civil Conse- quences of the King's Bench being without a casting Voice, that previous to Easter Terni^ last an humble Memorial was presented to his Excellencv the Lieutenant Governor, pointing out in some Ilespects the lAiilure of Justice in such a State of Things, and requesting his Excellency to withhold his Leave of Absence from the Chief Justice, whose Departure from the Province was at that 'I ime publicly spoken of. His Excellency, however, did not think proper so to do, and the evil Consequences anticipated have been realised. All that could be done by those who had only their humble Suggestions and Renion- stances to oflf'er was done. The Responsibility must rest where it has been wisely placed by the Constitution of the Country. During the Terms of Michaelmas and Hilary last past, with a full Bench, there were not fewer than Ten Cases wherein DifFerer.ces in Opinion arose among the Judges on important Points ; and in Easter Teiin I ist, during which the Chief Justice was absent, the Puisne Judges were divided in Opinion in Six several Cases. In such a State of Things substantial Justice cannot be said to be administered. In our humble Opinions, supported as they are by that of Mr, Justice Willis, we think the Legislature intended, by the express Provision of the Act establishing the Court, to guard, ;■'. the only Way in which the Means of the Country would admit, against the Evils under which we now labour, this express Provision being, "that His Majesty's " Chief Justice of this Province, together with Two Puisne .Justices, sh 11 " preside in the Court of King's Bench in this Province." We can have no Doubt but that we should have every Reason to feel happy at the Security thus established for the Rights, the Liberties, and indeed the Lives of our l'i ) I have neither Connections nor Interest to use in his Favoin-. lie will not, I am sure, fiire the worse on that account with the present (iovernnienl, on which tiie entire Confidence of the Country is placed. I have the Honour to be, Sir, R.W. Hay, Es<|. Your most obedient and I'aitiifiil Servant, «"-.«'c. &c. (Signed) W.U.Wilms. No. 17. COPY of a Letter from Mr. Willis to His Majesty's Secretary of State for the Colonial Department. §|f Liverpool, 7lli Aug. 1 82H. By a Letter from York, Upper Canada, wiiicii I had the Honour of address- ing to Mr. Huskisson, as Secretary of State for tiie Colonies, on the First of last Month, I stated what I conceived to be the Effects which have residtcd from the Opinion I have judicially expressed in regard to the illegal Proceed- ings of the Court of King's Bench of that Province. Deeply sensible as I was of the Inconvenience which must arise in consecpieiice of the Step which my Oath as a Judge obliged me to take, I never could have imagineil that a solemn and conscientious Opinion, witli the Reasons on which it was founded, could have subjected me, as a Judge appointed by His Majesty, to personal Persecution, especially as a constitutional llemedy could so easily have averted much of the Evil I had foreseen. It is now said that my Conduct, and not my Opinion onljj, has been the Subject of Consideration; and the Provincial Governmein, without stating to me in what Respect that Conduct was objectionable, or on what Ev'ilence it was decided to have been so, has made my Amoral a Penai-ty for an alleged Offence, of the Nature of which (although I have expressly re(piested Informa- tion from the Lieutenant Governor) I have not hitherto been furnished with any Intelligence whatever. I also knoxo (for it has been seen, and the Contents are not hid from me,) diat there is a demi-ojficial as well as a jmblic ()//lciul Correspondence respecting me ; but I trust I shall be officially and ilistinctly made acquainted with these and all other Charges anil Insinuations, putjlic or private, which may be urged against me, if any Doubt be entertained respecting the Illegality and Impropriety with which I have been treated. I must, however reluctantly, request you, in the first Instance, to procure for me an early Audience of His Majesty, to solicit, if necessary, the personal Attendance in England of the Lieutenant Governor of Upper Canatla, to answer in Westminster Hall, under the British statutory Provisions, for his Oppression. I am sure no Article of his Instructions can have authorized the Condemnation of One of the King's Judges for the Exercise of that Opinion which in England is not controuled even by the Commands of the Sovereign. I inclose Copies of an Address and a Petition having reference to these Proceedings, with the Contents of which, however, until ajkr theij were adopted, I was entuely unacquainted. I purpose proceeding innnediately to Bath, (35, Park Street,) and hope I may be permitted to pay my Respects to you at the Colonial Ofnce on Wednesday next, at any Hour most convenient for you to receive me. As, under existing Circumstances, /. have left my Wife, Lady Mary Willis, and my Family, alone in Canada, and every Hour encreases the Danger of the Voyage, either in case of my Return or their coming to Europe, common Humanity will, I am persuaded, urge every Dispatch on your Part in the Decision of this very unpleasant Business. I have the Honour to remain. With the greatest Respect, Sir, Your most obedient and very humble Servant, To the Iliulit Hon. tl.e Secrelary ol' Stale, (Signed) JoilN WaLI'OLI: WiLLLS. SiC. !vi'. ir to you the Sym|)athies of the People among whom you have cast your Fortunes, and administered so impartially the Justice committed to you by our King. It is most gratefid to our Feelings, as a Pledge for your Return, that upon proceeding to England, to seek, at the Foot of the Throne, the Redress of your Wrongs, whicli Wrongs we feel to be seriously oiu- own, you intend to leave your amiable and accomplished Lady and your infant Child to the Care of Heaven and the grateful Superintendence of a generous Public. Seeing that you are abandoned by the Provincial Administration and their Dependants, we have, independent of any Arrangements which your limited Knowlcd<.;e of the Country may enable you to j)rovitle, appointed, for our public Satisfaction, a Committee to watch over the Interests and insure the Protection of Lady Mary and Family, that her Ladyship may, during your Absence, the less feel the llenoteness of her Native Country and of her >foble Friends. This Committee consists of John Gait, I'^lsquire, and Lady, and Doctor William Warren Baldwin and Lady ; to whom is added Robert Baldwin, Esquire, as her Ladyship's Solicitor, hm Inclosure, No. Petitior. to the King's most Excellent Majesty, and to Branches of the Imperial and Provincial Legisli the several other legislatures. We, Your Majesty's dutiful and loyal Subjects, Inliabitants of Upper Canada' are constrained by the most painful Necessity to appeal to the Justice of Your Majesty against the Misrule of the Provincial Administration, and humbly to point out to Your Majesty the alarming Increase of our Grievances, and the Necessity of their Redress, as they become more and more inveterate, from the Patience with which we have hitherto endured them. We offer our warmest Thanks and Gratitude to Your Majesty for appointing to be a Judge over Ycur Canadian People the Honourable Jolin Walpole Willis, whose private Virtues and acknowledged Learning, blended with high and uncompromising Prin- ciples, uniformly evinced in the impartial Discharge of his judicial Duties, have already endeared him to the Country as one of its greatest Blessings, and as affording to the People the most flattering Presage of a new Era in the Administration of Justice. Of this Blessing we have been unconstitutionally deprived; and Misrule has at length become so bold, and Power so indis- criminate of its Victims, as to spurn from tlie Judgment Seat the Honourable Mr. Justice Willis, who there presented what has long been wished for, but seldom seen, the stern and fearless Integrity and Iiidepenilence oi' a British Judge. Such judicial Integrity and Independence are alarmingly endangered, when such a Judge, without Impeacinnent, ami even without a Charge, can be so ignominiously amoved irom his high Office. Alliiough we entertain the fullest Confidence in Your Majesty's Desire to promote the Happiness and protect the Rights of British Subjects throughout Your 11 jf." I Your uiiipli- and ;;loiious Dominions, yot our Hopes of speedy llcdrcss are not a little discouraged by a Knowledge that while we, on our Part, o\)c\\ to Your Majesty the Abuses and Ojjpressions growing u|)on us, the very Persons we accuse are pressing through other Channels, affording a more favourable Access to Y'our lloyal Ik'lief, those interested Misrepresentations which are designed both to promote Misrule and protect the Authors of it ; for it cannot be for. gotten that Misrepresentations from such Sources have already recently endun- gered our Civil and Religious Libertios, and cruelly vilified and traduced the fair Characters of the Dissenting Denominations of Christians in this Province. And the impending Consequences of such secret Misrepresentations are further apprehended, from the Speech of the Right Honourable William Huskisson, Your Majesty's Principal Secretary of State for the Colonies, in the Imperial House of Commons, as reported in some of the Public Prints. Notwithstanding Defects in the Law defining our Constitution, we are nevertheless warmly attached to it, and view with just Fear every Attempt to amend it without the Intervention of our Provincial Legislature, which is the constituted Guardian of our Rights and Liberties, and Which, considering the great Distance of the Imperial Legislature, can best understand our Necessities, and a|)ply the proper Ilemeclics. It has long been the Source of many Grievances, and of their Continuance, that the Legislative Council is formed, not of an independent Gentry taken from the Country at large, but of Executive Councillors and Placemen, the great Majority of whom are under the imme- diate, active, and undue Influence of the Person administering Y'our Majesty's Provincial Government, holding their Offices at his mere Will and Pleasure. Hence arises in a great Measure the practical Irresponsibility of Executive Councillors and othe- official Advisers of Y'our Majesty's Representative, who have hitherto with Impunity both disregarded the Laws of the Land and despised the Opinions of the Public. From the Impunity with whicli the greatest Abuses have hitherto existed, and the Difficulty in such a State of Things of applying an efficient Remedy, most of our (irievances have taken their Origin and Growth. First, the Rejection by the Legislative Council of the most salutary Measures passed by large Majorities in the House of Assembly, a?id nmch desired by the People. Secondly, the frequent Want of a Casting Voice in the Court of King's Bench, in this Province, owing to the illegal Absence of the Judges, esj)ecially of the Chief Justices, as well on distant Journies out of the Province as on Attendances in the Legislative and Executive Councils. Thirdly, the undue Influence which the mingled Duties of Legislative and Executive Advice have on the judicial Function. Fourthly, the Assumption of a Power by the Executive to appropriate a large Portion of the R-jvenue and other Monies raised from the Sale of Land and otherwise in the Province, independent of the Will or Sanction of the Assembly. ^ Fifthly, the extravagant Augmentation of Salaries, Offices, and Public Exnences, quite disproportionate to the State and Circumstances of the Colony. Sixthly, the Confinement of Public Prosecutions of Oflences to the sole Conduct of the Law Officers of the Crown in the Colony, embarrassing private Prosecutors in this small Community, where the Influence of Pohtics and Family Connections is so injuriously fi^lt. Seventhly, the retaining in Public 0«ices, and the Introduction into the same, of Persons who notoriously oug. be excluded. Eighthly, the AVant of carrying into Inflect that rational and constitutional Controul over Public Functionaries, especially the Advisers of Your Majesty's Representative, which our Fellow Subjects in England enjoy in that happy Countr)'. Ninthly, our present imperfect Jiay System. Tenthly, that Sheriffs, Coroners, and other Public Officers, hold their Offices during Pleasure, and not during good Behaviour, or otherwise, as in England. Eleventhly, that tlie Supreme Judges of the Land hold their Offices during Pleasure, and are subjected to the Ignominy of an arbitrary Removal. AVheiefore i; !i ( 905 ) Wherefore we humbly entreat for the Interference of Your Prerogative to lavour our Exertions to correct the Grievanceti under which we labour. We humbly suggest that the Legislative Council should be increased in Number, of whom a small Proportion only, strictly limited by Law. to be per- mitted to hold or enjoy any Place of Kniolnment oi Profit under the (joverii- ment, or to be Members of the Executive Council. iSecondly, that the Judges of the Court of King's Bench be not Legislative Councillors, nor Executive C'ouncillors, nor Privy Councillors, in any respect in the Colony. Thirdly, th^t the Judges shall not be permitted to absent themselves from the Province but on the most reasonable Cause, and with Leave obtained as prescribed in the British Acts relative to Colonial Officers. Fourthly, that the Judges be made independent as in England, holding theii Offices not as at piesent in this Province, but during gooil Behaviour, to be inquired into by Impeachment alone, in the Provincial I'arlianient, before tin; Legisliitive Council, when that Body is so modified as to become an imiependent Branch of the Legislature. FifUdy, that for some Time, at least till tiie Province allbnls an adetjiiate Source of legal and constitutional Education, the Judges be appointed from the Bar in England. Sixthly, that a Legislative Act be made in the Provincial Parliament to facilitate the Mode in which the present constitutional Responsibility of the Advisers of the local Government may be carried practically into Effect, not only by the Removal of these Advisers from Office when they lose the Confi- dcnce of the People, but also by Impeachment for the heavier Ofliences chargeable against them. Seventhly, that our present Jury System be amended by a new Law, whereby the Jurors to be impannel'ed may be more equuMy selected irom the Country, less at the mere Nomination of the Sheriff or his Officers ; such new Law to extend both to Grand and Petit Jurors. Having thus, under tlie Pressure of the jjresent Crisis, liestily concentrated our most pressing Giievances, and humbly prayed for the Royal Aid of Your Majesty's Prerogative in providing appropriate Remedies, we Your Majesty's dutiful and loyal Subjects cannot omit again to bring under Your Majesty's serious Notice, as indicative of the Necessity of a Change of Meti and Measures, the recent violent and unconstitutional Removal from Office of the Hon. John Walpole Willis ; a public Wrong calling more and more loudly for our most earnest Remonstrance to Your Majesty, and strongly elucidating the injurious Cliaracter of the Policy pursued by the present Provincial Ailniinistration. Such was the Apprehension of the practical b.ul Consequences of the King's Bench being without a Casting Voice, that previous to Easter Term last a Memorial was addressed to his Excellency, jiointing out in some Respects the Failure of Justice in such a State of Things, and requesting his Excellency to suspend his Leave of Absence to the Chief Justice, whose Departure from the Province was at that Time publicly spoken of, even until after the approaching Term. His Excellency, however, did not think proper so to ilo, and the evil Consequences anticipated have been realized. During the Terms of Michael- mas and Hilary last past, with a full Bench, there was not fewer than Ten Cases wherein Differences in Opinion arose amongst the Judges on important Points; and in Easter Term, during which the Chief Justice was abse .t, the Two Puisne Judges were dividetl in Opinion in Six several Cases. In such a State of Tilings substantial Justice cannot be said to be administered. The Provincial Law wisely enacted that Your Majesty's Chief Justice of this Province, together with Two Puisne Justices, shall preside in the Court of King's Bench. And as a Diver.-.ity of Opinion has, on many important Points, unhappily prevailed among the Judges of that Court, which is the only one of superior Jurisdiction, and from which, in the vast Majority t)f Cases, there can be no Appeal, the Lnportance ofmaintainmg that Court as organized by Law becomes the more urgent, and the Violation of that Lav pioductive of the greater Evils. Under these Circumstances, we feel that the Hon. Mr. Justice Willis deserves the Approbation and Confidence of all good Men, for withdrawing from the -3 V Court w >mm- I ( we ) Court House, uutU;!- a conscientious Conviction in liis own Breast that he could not administer Justice according to Law while the Court was not c-onstitutcd as that Law rtiquircd. Sensible as we are that the Appointment of Judges esteemed by the People for their Learning, antll)eloveil by them I'ortheir Virtues, is in every Colony so blessed the most conclusive Kvidence of'tlie Health of the <> -put Body Politic, so do we feel that this deliberate, violent, and iniconstitutional Removal of Mr. Justice Willis, depriviiig us of the Benefit of hi;; honourable and conscientious Ser- vices, is a (irievaiice of such Magnitude as requires Your Majesty's paternal Interference j and this Kvil we feel the more serious, because it furnishes the present iTOvincial Administration with an Ojiportunity of placing upon the Judgment Seat a Man liibouring luider those Prejudices of Family Connections and Party Feeling from which Mr. Justice Willis was necessarily and happily free — Persons, withal, very inferior to that (Jentleman in Education, in Talent?, and in legal Knowledge. While strongly feeling this Injury, Your Majesty will, we beseech, hear our Complaint of the Conduct of the Honourable Mr. Justice Sherwood, who, in the Absence of the Chief Justice and of Mr. Justice Willis, proceeded alone to exercise nil the Powerj of Your Majesty's Court of King's Bench, and yet abstr.ined from offering any Justi- fication for such Assumption, f()r the Satistiiction of the Public, althougli requested to give to the Bar his legal Reasons for such a Course. He had a; that Time vacated his Office, by absenting himself from the Province without the Leave prescribed by Law. We should omit a Matter of the first Importance to the happy Conduct of our Civil Affairs, did we forbear to mention to Your Majesty, with all the Delicacy becoming us, when referring to the Exercise of Your Royal Prero- gative, the total Inaptitude of Military Men for Civil Rule in this Province. The almost constant Absence of Your Majesty's Representative from the Seat of Government, where almost Daily is required his assiduous Superinten- dence over Public Affairs and Public Functionaries — his total Unacquaintance with the Inhabitants of the Country, with the Exception of those whose official Occupations place them about I is Person, whereby he can be but ill informed of the true State of the Country, or of the Condition or Wants and Wishes of its People — the Charge of Disloyalty against those who question the Policy of the present Administration — a System of Espionage spreading from the Seat of Government over the Face ot the Country — a threatened Degeneracy in the State of Society, endangering, by the insidious Operations of those morbid Causes, that Public Feeling, truly British, and yet happily alive in this Colony — the undue Influence over Electors in many Ways, but especially by the issuing of Patents granting Land, sent into the Country in profusion, to be distributed by Candidates acceptable to the present Provincial Administra- tion — the Acceptance of Office by Members of the House of Assembly, without vacating their Seats, as is the necessary Consequence in England — and the almost mortal Violence offered to the Constitution oy the Exercise of worse than Military Rule, in the Intimidation of the more dependant Members o^" the Legislative Council into the Views of the Administration, at the Peril of their Offices, as was exposed in the Testimony of the Honourable Wm. Dickson and the Honourable Thomas Clark, in their Evidence before a Committee of the House of Assembly during the last Session of the Provincial Parliament — wherein we Your Majesty's fiuthfid and loyal Subjects being greatly aggrieved, most humbly, most earnestly and confidently pray Your Majesty for Redress, as far as sucli Redress lies within Your Majesty's constituted Power. And, as an Object filling us with peculiar Solicitude, we do most earnestly importune Your Majesty, fliat You will be graciously pleased to restore Mr. Justice Willis to the honourable Situation to which Your Majesty had appointed him, and thus protect Your Majesty's Royal Choice, Your faithful Judge, and us Your loyal Subjects, from the Wrongs that arbitrary Rule in the Provincial Autho- rities, unchecked, would assuredly inflict. And Your Majesty's Petitioners, as in Duty bound, will ever pray. i ( «07 ) No. 18. COI'Y of a Letter from Mr. VVii.i.is to tlie .Secretary ol State for the Colonial Department, datiil Lomloii, IS Aiif?. 18'J8.— '2 Eiu-losnres. Sir. Loiuloii, Hritiili Coffee Himw, toclspur 'jlrei't, l.'Uh AiiKiiHt IH'JM. Having within these few Days returned from Upper CanaiLi in conscouence of my Removal from my Office as one of His Majesty's Juilj.v-s of the King's Bench by the Lieutenant Governor of tlie Province, ! liave the Honour to inclose a Cony of the Commission amoving me. together with a Copy of the Ixtter by winch it was accompanied, from the .Secretary of his Kxcellency. In considering the Statem. .it of Major Hillier as explanatory of the Cause.s upon which my Removal was advised and ertected, I look in vain for any adei quate Reasons to justify so severe a Measure. The Eft" cts consequent upon any judicial Decisions cannot. 1 .submit, forni substantial Grounds of Accusation ; and any Disapprobation of my Conduct, in order to its being remedied or explained, ought, it Cause existed, I imagine, to have been distinctly stated. I have therefore most respectfidly to entreat that I may be furnished with as full and explicit a Statement of the Reasons adduced A)r my Suspension as I can in all Justice be required to answer. It must be obvious at what a Sacrifice of personal Convenience and Ex- pence I have been comi)eUed to come to England, and under what distressing private Feelings and Sense of public Imputation I must remain, until an Opportunity be att'ordcd me of justifying my Co. .Uict. I feel confident that every honourable Principle, as well as common Huma- nity, will combine to render the consequent Investigation of this Matter as ample as I humbly hope it may be expeditious. I have the Honour to be, Sir, Your most obedient and humble Servant, The Kt. Hon. the Secretary of State fur the Colonies. (Signed) Afler August 14th, at 35, Park Street, Bath. John Walpole Willis. ITfw Commission and the official Notification thereof are inserted at pp. V2,Vi. of the Documents pxihlishcd hij Mr. JCillis.'} No. 19. COPY of n Letter from Mr. R.VV.Hav to Mr. Willis. 1^1,. Downing Street, Londun, 2Uth Aug. 1S2H. 1 AM directed by Secretary Sir George Murray to ack\ ' ;dge the Receipt of your Letter dated the lath Instant, inclosing the Copy of an Instrument issued by the Lieutenant Governor of Upper Canada, for suspending the Exercise of your Functions as one of the Judges of that Province, and requesting to be furnished with a full and explicit Statement of the llcasons adduced tor your Suspension. Sir George Murray regrets that it is not in bis Power to give you all the Information which you desire, as no official Intelligence from the Lieutenant Governor, of the Fact of your Suspension, has hitherto reached this Department. Adverting, however, to the painful and embarrassing Situation in which any Uncertainty respecting the Reasons of your Suspension fiom Office must liievitably place you, the Secretary of State has directed me to communicate to you the most material Statement which has hitherto been received from the Lieutenant Governor of Upper Canada, in which the Propriety of your official Conduct has been called in question. This Statement, as you will perceive, iflates I ( 'A)S > f^. iii'^ ii'lat»"( Id ,1 TriUHiictKin iii wliiili you iiupiite serious Misnuulurl to Mr. Robin- son, the Attorni-) (loncnil ot llir riovnuT. To yoin Cliaij^es Mi. Robinson liiis madi! a Dcliini-, oC winch I iniloni- a Copy ; and .Sir (icor^o Murray will lie lia|,()y to recoivi- any Kxplunations wliich you may tiiink it riuht to otter on that Siibjfct. Ah soon as tlu; otticia! CnnwiHuncation (Voni the I.ii'utcnant (lovernor .e- sm'cting tlu- (iroinuN of your SuHpunnion from Office shall he reotived at this Department. .Sir Cieorge Murray will put you in poisesgion of the Reasons adtluccil l)y the Lieutenant (lovcrnor for that Moasiue ; and you will easily understand that the .Secretary of .State cannjt hut feel extreme Regret that a real or suppu.ei! Necessity should have existed, at such a Period as the present, for the Measure which the I.ieulenant (lovernor, with the Advice of his Council, has felt himself reijuired to a ) hroiight and proved bclbie the Public, and a Verdict recorded (i.r the riuintill 111 that Action, and in tlie rreseiice, as 1 am informed, of the Attorney General ; establisliing the Fact of a very gross Violation of the Public Peace having been committed, of whicii, therefore, lie could not have been ignorant. In the latter, the Cases of Libel, from the Connection of the alleged Libels, as it was stated by the CounsJ for the Defendant, with the immediately preceding Trial ibr Murder, the Peace and Harmony of Society, the Resto- ration of which seemed so earnestly to be desired, could by no iiieans, I apprehend, have been so eflTectually promoted as by the Poslpoiieinent'or Relinquishment of the Trial of the alleged Libels, and this Course, therefore I ventured, though as I before said, not judicially, to reconunend. ' I shall offer no Comment upon the Language and Demeanour of the Attorney General, who is also a practising Attorney, and as such an Officer of the Court. To Mr. Robinson, and every other Person in the Colony, I trust 1 have no other Feeling than that of Charity and Good-will, nor have any Party or Political or other Motives but those of long-cherished Veneration and Love for my Sovereign, and an earnest Desire to dispense Justice impartially to all ever actuated my Conduct. I trust I shall not he deemed disresi)ectfiil in expressing my Surprise that the Provincial Government has not hitlierto officially notified to you the Faci of my Amoval, together with such Grounds as have been alleged by Major Hilher for a Measure so severe, and so much at Variance with British Notions of the Independence of the Judicial Office. It must be borne in Mind, that above Two Months ago, having been most unwavrantably deprived of the high Office of Judge confided to me by my gracious Sovereign, I have been and am unjustly undergoing a most severe and harassing Penalty for a supposed Offence, without my being aflbrded an Opportunity of answering it ; and I am thus placed in a Situation in which the Justice of our Country does not permit tiie meanest or most guilty Individual to remain. J liave the Honour to be, Sir, To tlie Right llo„ il.e Secretary ot Stale, Your most obetlient Servant ( olonial Department. . ,,, ,, ' ' John \V.\i,poi,k Willis. Should my Explanation not be deemed by His Majesty's (Jovernment sufficiently explicit, I am cjuite prepared to enter into the minutest Detail, taking Mr. Attorney General Robinson's Statement and Letter Sentence by Sentence. Inclosiire, No. 1. Sir, York, Upper Ciiimda, I2lh .\|)ril 1828. As Judge of Assize, Yesterday, I stated that the Law Officers of the Crown (who have hitherto always conduced, and who alone are paid by the Public for all Criminal Prosecutions in this Province,) were, in my Opinion, bound to prosecute all Crim<,s which they know have been committed, of their own Accord; but the Attorney General, certainly not in so courteous a Manner as the Bench is usually addressed in England, disclaimed that Duty, admitting, however, that he and the Solicitor General were the Public Prosecutors. I then said, the Question must be decided by the Government ; and as nothing can be more neces.sary for the due Administration of Justice than that the Source from which all Public Prosecutions must originate should be distinctly under- stood, 1 do not think I should honestly discharge the Duties of my Office did I not respectfully submit this Matter to your Excellency's Notice. I have the Honour to remain, Sir, Your Excellency's most obedient and very humble Servant, (Signed) John Walpole Willis. To liis Excellency the LiciilenanI (iovenior, i*^c. (tc. ^0. { '211 ) ''"'' York, Upper Ciiiiiil.i, lull April I •'■Jf*. I AM sorry to have occasion to appeul for a Decision respecting the Duties ot the Attorney General oftiiis Province, who now repudiates (as I umierstand lum) wliat he stated on Friday last, namely, tiiat Criminal Prosecutions in tliis Provmce are, as in England, open to tiie Bar ; and lie has tiiis Day, in open Court, further asserted that, as His Majesty's Attorney (ieneral for this Pro- vince, he is answerahle for his Conduct, in his legal Capacity, not to any of His Majesty's Judges of this Colony, hut only to the King's Government. If this he so, the Question is, whether the Attorney General, who is not only a Barrister, hut a practising Attorney and an Officer of the Court, or the .luilge who presides, is to he superior ? I had occasion piihliclv to notice the Mildness of the Criminal Law of England, and the Administration of it there as it noru stands, as contrasted with that which is admitteil into this Province, which is what It was in England in l~(JQ; and I now call on your Excellency loohserve the Improvements since that Period, and e.ipecially those recently made by the Right Honourable the Principal Secretary of State for the Home Depart- ment. A Sense of Duty attached to the Dignitv of my Office compels me, however reluctantly, to add, that the Language of the Attorney General was such that I could only tolerate it from his being an Officer of Government, and from my Wish, on that Account, not to obstruct the Public Business, In tiiis Contro- versy, I entirely disclaim all personal Eeeling. I do not, nor can I ever, con- descend to entertain it on any Public Measure ; but the Crisis has now arriveil at which it must be determined how Criminal Prosecutions here are to be conducted, and how far the Law Officers of the Crown, as practising Attornies of the Court, are amenable to th.3 Judges of the Province. I have tiie Honour to he, kc. ■l\, 1,1s Kxcellency tlie Lieutenant (i.ivcrmir, (Signed) JoiIV WAl.roi.i: Wii 1 i«. Nc. Ike. Ike, ^ o / J^tiiiiifiird Cotlngi'. Inclosure, No. M. r\ a 1 \ M ^ 1 ,„ • ^ r Vork, Upper Canada, hpririj; \ssi/cs 182H. On Sunday, April 0, the Chief Justice called on me to re(|uest I wouki assist him in the Business of the Assize, which he intended to open next Day. I immediately offered to give him every Aid in my Power, in case Mr. Justice Sherwood, who is my Senior, should decline, or be unable to act. On Monday 7th April the Commission was opened by the Chief Justice, and on the Tuesday and Wednesday following, Mr. Justice Slierwood presided, but on tlie latter Day addressed a Note to me declining to proceed, and saying that the Sheriff had received his Orders to attend me the following Morning. On Tuesday, previously to going into Court, I saw and conversed with Mr. Attorney General in tlie Robing Room, and I think it would not have been more than respectful had he entered the Court when it opened, particularly as it was the first lime I pies ' I in Canada as Judge of Assize. Immediately after the Court was openei , Stranger addresseil me, and said, he had an Application to make to the Court, if I would permit him, not being a Lawyer, to do so. I replied, « Most certainly ; step forwaril that the Court may hear you." He said lis Name was Francis Collins, Editor of the Canadian Freeman ; that he bad been indicted and arrested on Su,spicion of Libels ; that the Attorney General had acted partially and vindictively in proceeding against him, and not prose- cuting Persons who had committed the grossest Outrage on the Peace of Society, by breaking into the House of the Editor of the Colonial Advocate, destroying his Press, and throwing his Types into the Lake ; and although they had a Verdict recorded against them in a Civil Action at the Suit of the Individual they hud injured, and the Trial took place in the Presence ol' the Attorney General, these Parties had not been prosecuted by the Law Officers of the Crown. About this Time the Attorney General entered the Court, and interrupting the Applicant, hey-ed I would direct Mr. Collins to state the Objed i . ,3 ill ( • 1 i I • H c ^W ) Object of his Motion, and iiopcil I wouKl not allow the Pul)lic Business to bi- interrupted by a long Speech. 1 said, the Object of tiie Motion would be explained by Mr, Collins, and directed him to proceed. The Applicant then complained, in very energetic Language, that those who were concerned in the Destruction of the Press had not been indicted; and his Application to the Court was to compel the Attorney General to do his Duty by prosecuting these Offenders ; and that he should also pr^ss for a Criminal Prosecution against H. J. Boulton, Esq. Solicitor General, ami James Small, Esq. lor the Murder of Mr. J. Ilidout, and whose printed Confession of that Officer he then held in his Hand ; and that those Prosecutions had been neglected by the Attorney General on the Ground of private Connection and Friendship. I then said, your proper Course is to go before the Grand Jury, which is now sitting, and they will receive any Complaint you may think proper to make, and I will take care that the Crown Officers do their Duty. Addressing myself to the Attorney General, I said, " If you have refrained from prosecuting " the Rioters, as has been stated, I think you have very much neglected your " Duty." The Attorney General replied, he did not consider it to be his Duty to prosecute any Person, unless Application had been previously made to him for that Purpose ; that the Party seeking to prosecute ought in the first Instance to apply to a Magistrate, or the Grand Jury ; that he was not nor woidd be a Thief-taker, or go about the Country to hunt for Evidence; that he had been 13 Years the Public Prosecutor in the Province; that he had uniformly pursued this Practice, which was the Practice also of his Predeces- sors. I then said, Mr. Attorney, I think you have pursued a wrong Course, and I do not think you have done your Duty as the Public Prosecutor in the Case mentioned to the Coiut. Why, I asked, were you placed here as a Public Prosecutor, but to prevent and punish Public Offences? and it is your Duty, whenever a Violation of the Public Peace is proved before you, to bind over those who are able to givt; Testimony, and institute a Public Persecution. I asked if he did not consider that he, Mie Attorney General, and the Solicitor General, had the exclusive llight to conduct all Criminal Prosecutions, or whether he admitted them to be open to the Bar in general, as in England? I understood him to reply, he conceived them to be open to the Bar. I then asked, if the Expences would be allowed by Government to any other Gentle- man who might conduct Criminal Prosecutions, except the Attorney and Solicitor General. He replied no. I then remarked that I considered, in the Case now complained of, he had not done his Duty. The Attorney General then said, " I think, my Lord, I know mj Juty as well as any Judge on the Bench ; " and, however I may differ in Opinion from your Lordship, or any other " Judge of tiie ("ourt, I shall continue to pursue the same Course." I then said. Then if you know your Duty, Sir, you have neglected to perform it ; you have uniformly acted improperly, and as you say you will persevere in that Course, I, as a Judge of the Court of King's Bench, shall feel it my Duty to appeal to the Government to decide the Question. The Attorney General said, he was satisfied. Mr. Collins then proceeded, by saying he had more to communicate ; and alluding in strong Terms of Animailversion to the Conduct of the Crown Officers, I said, I could not allow him to make any Observations calculated to asperse the Members of the Bar or the Magistracy, and desired Mr. Collins to proceed with his Cliarges before the Grand Jury, anrl 1 would take care that both they and the Crown Officers should do their Duty. On the following Monday, a true Bill for the Murder and another for the Riot having been pieviously found by the Grand Jury, Mr. Robert Baldwin applied for Leave to conduct the Prosecution for Murder, as the private Coimsel of the Party preferring the Charge; stating at the same Time, that after the Public Avowal the other Day made by the Attorney General, that Prosecutions were open to the Bar, he should not have made the Application, had not the Attorney General alreatly prepared the Indictment on the Pre- sentment of the GrantI Jury, and proceeded in the Prosecution as a Matter of Right, i said, if the Attorney General would consent, there would be no Difficidty. Tiie Attorney General then rose and said, that he wished to express his Sentiments publicly on this Occasion. That the Question involved Con- sidv rations of very great Importance, and he was glad of an Opportunity of doing ]li ( '213 ) tioing away with any Misapprelieiisioii ol' \\li:il lia.l llilleii liom liiiii on a ibrmcr Day. That in almost all the Countries in Kurope, with the Exception of England and Ireland, and in the Colonies, Prosecutions in Criminal Charges were carried on by the Public Otlicer ; and this had been considered the most effectual Way of promoting the Ends of Justice, as it was for the Sake of Justice, and not to gratify the Feelings of Individuals, that such Prosecutions were instituted. He alluded to France, .Scotland, and the Uniteil States ; and in the Disputes in IJm^cr Canada between the Hudson's IJay and North West Companies, he said, wlien he and the private Counsel ilitiered as to the .Vmount of the Offence, he referred the Parties to the Grand .Jury, and tiuis exonerated himself from Responsibility. He then consented to give nj) the Prosecution in this Case to Mr. IJaidwin. On this I took Occasion to observe, that I had been accustomed to the Proceedings in the Courts in England ; and although I had not much personal Experience in Criminal Practice, I was acijiiaiiited with the Manner of Proceeding, and with those who had been very much engaged in it. My Opinion was, that when the Criminal Law of England was adopteil in Upper Canada, the Practice of the l-:nglish Courts was ,ilso adojited. That the Criminal Law of Itlngland was at j)resent more mild and lenient in its Pro- visions than tiie Law of the Province, ami its Mildness was e\en siupassed by the Manner in -.vhich it was administered. I considered it to be the Duty of the Attorney General to enquire into all notorious Offences which came within his Knowledge; and though I did not expect the Public Prosecutor to become a Thief-taker, yet, when he knew of an Ollence, it was his Duty not to pass it over. The Practice in this Province, as stateil on a former Day by the Attorney General, did not agree with my Xotions as to tiie Duties of tiiat Oilicer ; and I had laid a Statement before the (iovernment, in order that it might be trans- mitted to England, where it would bo decided how fur I was right in expressing the Opinion I had given. The Attorney said, " he was Attorney General to " His Majesty and not to me, and he would act as he believed to be right, however " he might differ in Opinion from me." I then said, " If the Interests of the " Crown had not been concerned, I would not ha\e admitted any Debate on " the Question ; but I was sure His Majesty's Government i/ould protect me " from Insult, when, in the Exercise of my judicial Functiov.s, 1 stated to any " Public Officer what I conceived the Duties of that Office to be." The Attorney General, " And will also protect His Majesty's Officers in the E.\e- " cution of their Duty." I desired him not to rcj)ly to the Bench. On the Timrsday ibiiowing, pre\ ioiisly to the Arraigimient of the Rioters, Mr. Robert Baldwin again applied for Leave to conduct the Prosecution. The Attorney General opposed it ; and 1 stated, tiiat until the Question was decided by higher Autliority the Practice must continue, and the Attorney General in consequence proceeded. When the Trial for Murder ended, I said. I trusted tiiat, with the Trial, all the Circumstances connected with tiie unhappy Events would, for the Peace of Society, and in compassion to the Feelings o:' tiie Individuals connected with the Parties, be for ever buried in Oblivion. A Proposal was then made [)y Mr. J. Rolph, as Counsel for Mr. Collins, the Defendant in some Libel Cases which Mr. Rolph stated to be connected with the Trial that had just terminated, that tl.e Indictments tor Libel should be withdrawn. This the Attorney (icncral refused. I afterwards took Occasion to say, begging, however, that I might not be considered as sjieaking judicially, that I hoped every thing would be done to promote Peace and Ilannoiiy, and allay Irritation ; and that, if the Libels were not very bad, I hoped the Pro- secution would not be pressed. Tiie .'Attorney General asked me if I knew what they were? I said. No, indeed, I do not. He then said, Will your Lordship read them, and tlien say whether I ougiit to jjroceed or not. I answered. Certainly not ; it is Time enough lor me to become ac(|uaiiited with them when they shall be legally before me. After consulting with his Clients, the Prosecutors in the LibelCases, as the Attorney called them, .Mr. J. II. Boulton and Mr. Jarvis, both materially implicated in the fiital Duel, and out of the Circumstances which attended it,' I understood the alleged Libels to have arisen. The /Vttorney General said, after a Statement of his Consent had been publicly made by Mr. Boulton, that he (the Attorney) would consent to a H withdraw I 11 ( ^214 ) witluimw all sucli Prosecutions for Libel as had not originated on Present- ments of the Grand Jury ; and those he would allow to stand over till the next Assizes, as a Security for tiie good Conduct of the Press. To this I replied, liiat I thought both he and the Solicitor Gene.al acted very leniently; and, in order to shew the Conductors of the Press the Responsibility they laboured under, I would take that Occasion of reading to them what Sir Willium Blackstone said on Libel. Mr. K. Baldwin then said, his Client did not like any Proceeding to be kept hanging over his Head ; and as Mr. llolph, his Leader, was absent, he could not consent to those Terms, but would rather the Business should proceed. I said, Now, don't consider mo us Judge, but allow me to be your Counsel, and I will undertake to settle with Mr. llolph for you, so that a'l this unhappy Business may be set at rest. The Trial of the Rioters, of whom Mr. J. P. Jarvis, the Deputy Secretary of the Province, was the* Ringleader, then proceeded, and the Parties W2re convicted, though the Evidence, in my Opinion, was far from strong ; and, if I may hazard a Con- jccture, their own Admissions had great Weight with the Jury. Mr. Jarvis, it will be recollected, was concerned in the Prosecutions for Libel in conse- quence of Remarks on the Duel in which he had borne so conspicuous a Part. Mr. .Jarvis is the Deputy Secretary of the Piovince. The Defendants wore all young Men of most respectable Connections, and engaged in professional or mercantile Piusuits. Mr. Lyons was indeed also an OHicer ol' Government. A large Sum had been paid in consequence of the Verdict against them in the Civil Action. 1 considered the Public Conviction on that Occasion as going far towards satisfying Public Justice. Lnprisonment would have probably deprived them of their future Livelihootl. They had suflered the Punishment of being held up to Public Reprobation by tiio Newspapers almost constantly from the Time the Outrage was committed, anil this was urged most suon.>-ly by Mr. M'Cauly, their Counsel, on their BehalK Leniency to Men or" liberal Minds would, in my Opinion, be a greater Punishment, and have a better Effect than Harshness. Uniler these Circumstances I ordered them to pay a Fine of Five Shillin<>s, and be discharged ; and I had, even before the Trial, suggested the Propriety of their pleading guilty, and throwing themselves upon the Mercy ui' the Court. Had the Attorney General permitted Mr. R. Baldwin to have conducted this Prosecution, the Government would not have been put to the Expence com- plained of by the Attorney General, for he expressly states that the ICxpences of Prosecutions are only allowed by Government when the Proceedings arc conducted by the Law Officers of the Crown. Witli this Trial ended my judicial Functions at that Period. Mr. Justice Sherwood having presided on the followiuf-- Day, for the Purpose only, as it was imagined, of passing Sentence on the Prisoners convicted before him; but other Business and Discussions respecting the Libels arose, in which I had no Par- ticipation. I ought perhaps to have stated, that the Libels were originated by the Editor of the Colonial Advocate attributing the Crime of Murder to Mr. J.trvis, and by Mr. Jarvis publishing a Vindication of himself in a Paper appended to the Government Official Gazette. On the last Day of Easter Term last I had Occasion to deliver my Opinion on a Motion for a new Trial, in an Action brought by George Rolph, Esq., against J. G. Simons, Hamilton, and Robertson, Esquires, all Persons of the highest Rank in the Province. The Case wa^ this :— At the previous Assizes 111 tiie Gore District, Mr. Rolph brought his Action against the De- fendants to recover Damages for the Injury he had sustained by beiu"- taken fi-om his Bed in the Middle of the Night by the Defendants, who enie'?ed his House for that Purpose, and dragged him to an adjoining Field, where he was tarred and covered with Feathers taken from one of the Pillows of tiie Bed on which he had been sleeping. He obtained a Verdict against them, but with triflmg Damages, in consequence of the alleged Abstraction of some material Witnesses, and of some other Persons refusing to give Testimony when required, on the Ground that they feared to criminate themselves by so doing. The Solicitor General was Counsel for the Defendants. In delivering my Opinion I said,—" The Solicitor General, in shewing Cause against the Rule, as I under- " stood hun, began by stating that this was an Aggression against the Public " Peace, let, not was " Peace, and a fit Subject lor a Criminal Prosecution. In this I entirely agree " with him, and I only regret that he, as the only Law Officer of t!«.j Crown " on tiie Circuit where the Oftence was committed, and who, therefore, as " such, was entitled, according to what I am told is the present Practice, to •' the exclusive Privilege of being employed in all Criminal Prosecutions, " should, by defending those who were charged with the Outra!,'e, 1 av ssibly " prevented an earlier Appeal to those Laws ■.vhich have been mkui. .or the " Protection and Peace, not only of Individuals, but of the whole Community. " When the Officer whose Duty it is to enforce Obedience to the Law ajjpears " in a Civil Action to defend those who have transgressed it, Lord Coke's '• Axiom, ' Oderunt peccare maliformidine pmtw' holds good no longer ; for " how I would ask, can those whose Conduct is defeniled by the Public Prosc- " cutor stand in awe of Public Punishment for that very Conduct?" The Solicitor General pressed to be heard in Lxplanation of his Comli He said, " I was retained in the Civil Action, and a Civil Action does " necessarily involve a Criminal Prosecution. I could not foresee it. I\ " retained in the Civil Suit before the Assizes, and it was no Part of my Duty •' to hurt up whether Criminal Proceedings would take place. Such has been " my Practice since 1 held His Majesty's Commission, and such shall always " be my Practice while I continiie to do so. I have been acting as His " Majesty's Solicitor (Jeneral for Ten Years. If I am wrong, I siijjpos'e I shall " not hold that Situation much longer ; and in that Case, perhaps, the shorter " Time the better. It is not a Part of my Duty to hunt up Cases. Tiie " Public Prosecutor is known in this Province to receive pay for his Services ; " and if I were to go about hunting up Prosecutions I shoulil be chargetl with •' doing it for the Purposes of filthy Lucre. Tiie Plaintiff made no Attem|)t to " engage me on his Side before the Action was brought, although my Services " were equally within the Reach of both Parties; and the Plaintiff must have " known the first that he svas going to bring the Action. Had I been " officious it might have been said that [ did it to injure the Civil Action " which was pending, and to lessen the Damages," I said, " When a Public Prosecutor is retaineil to defend the Civil Injury it " must deter the Person against whom he has acted from applying to him ; it " is the natural Consequence." Mr. Justice Sherwood. — " The Party injured had Redress without the Aid " of the Solicitor. He might apply to the Orand Jury, or to the Judge, or to " a Magistrate. I should be sorry to have it said there was no Road to .Justice " but through the Crown Office's. The Grain! Jury, if they had been applied " to, would have found a Hill, and the Court would see that it was properly " proceeded in, and the Solicitor, I am sure, would have done his Duty. If " he did not, the Court would have taken care that the Case did not suffer " from Want of his Exertion. I said, " Undoubtedly a Party may so prefer his Complain .fore the Grand " Jury or a Magistrate ; but who is to conduct the Prosecution fljr him? — " Who is to draw t!ie Indictment ? Who is to summon the Witnesses and " arraign the Evidence ? From the Nature of the Human Mind it cannot " be free from Prejudice. A Man cannot, and ought not, in the Administration " of Justice, be engaged on one Side To-day and on the other Side To-morrow, •• whether his Services be rendered to a private Individual or to the Public. ♦• If a Man do not, under such Circumstances, suspect himself, others will " suspect him." Judge Sherwood. — " I mean to say that the Public Prosecutor was not bound to volunteer his Services." I said, " But his Services should be open and unprejudiced, to be rendered «' to the Person injured, if he held himself out as a Public Prosecutor, to the " Exclusion of others ; and in all flagrant Cases coining to his Knowledge he " ought, if a Public Prosecutor, to prosecute. However, I have taken Steps •• as iiir as lay in my Power to procure the Opinion of His Majesty's Goverii- '* ment on these Points, and until that is done, the Practice will, I am sure, " remain as it has been." The Attorney General — " I should have hoped, until this Matter was " decided in England, my Learned Friend and myself would have been spared " these I m ( 21C ) " these unpleasant Observations. For my own Parti cannot sec any Kvil ty " arise from the Public Prosecutor b''ing engaged in the Civil Action for the " same Offence ; yel I may safely allege I never was so situated." Ji'.ilge Sherwood — "I give no Opinion as to the Propriety of being engaged " in the Civil Action." Such, then, according to the best of my Belief and Imp-er-ion, is a true Statement ol' what has occurred i._ on these Subjects, The Circumstiinces took place in open Court, and can therefore be confirmed, or, if incorrect, contradicted by Numbers. I therefore humbly submit this Detail to your particular Consideration. (Signed) John Wai.i>oi.i; Willis. Inclosure, No. 3. Copy of a Report of the Select Committee, to whom was referred the Petition of William Forsyth ; with the Testimony of Kvidence examined thereon. \_For Ihis Document, see p. IHO.'] Inclosure, No. 4. Circular from .1. W. Robinson, Attorney General, on the Subject of Public Prosecutions. [^For this Document, see p. 179.] m- -it 'M iiif I ■ Inclosure, No. 5. A Contradiction of the Libel, i-nder the Signature of «' A Relative," published in the Canadian Freeman of the 28th February IS^S ; together with a few Remarks, tracing the Origin of the unfriendly Feeling which ultimately led to the unhappv Affair to which that Libel refers. By Samuel P. Jarvis. Uth M:>rch 1-28. The Libel. — For the Canadian Freeman. To the Public. — I have for a long Time intended to ma' e known to the World the lamentable Fate of the Youth Mr. John Ridout, and the Circum- stances relating to his untimely End. For Ten Years 1 have waited for a favourable Opportunity to bring the Matter forward. The Hour has now arrived, and I shall not let it pass by ; they have laid their own Snare, and let them be taken in their own Toils. In a Pamphlet lately printed by the King's Printer, entitled a •' Statement " of Facts, &c." Samuel P. Jarvis, the IJcstroyer of this lamented Youth, endeavours to justify his Conduct by stating, that he "acted under a fatal " Necessity which the Condition of" Human Society imposes, and surrendered «' himself unhesitatingly to the Officers of Justice." In the U. E. Loyalist of the lOth Instant, himself or some one of his Friends again alludes to the same unfortunate Transaction, under the Signature of " A Subscriber," and makes the following Assertion : — " Air. Jarvis, though unfortunate, is known to have acted an honourable and <' upright Part; and his subsequent Conduct, in surrendering himself to the " OfKcers of Justice, and enduring a long and painful Imprisonment, which " ended in a Public Trial, at which he was honourably acquitted by a Jury of " his Countr)-, has reflected i\viX Credit upon his Character \\\nc\\ such Calum- " niators as the Editors oi' i\\c Advocate and Freeman can never injure." 1 cannot suffer the foregoing to pass unnoticed, and shall therefore contradict it in every Sense of the Word, as it is well known here that u great Crime was ( -'17 ) was committcil, ami that a mock Trial Ibllowcd. Tims has the Miiiilcr itf a IJoy serv'jil to be a Hoast, ami to exalt the Character of iiis Slayer, ami to reflect that "CWdil" upon him whicii (as his I'Viemls say) no raliimnialor can destroy. Hut Truth can destroy it ; and tliere(()re I have imdertakcn tiie painful Task of snbmittiu<; the ibllowing Statement of Facts upon this malanciioly Subject : — The following is a Narrative of the Life of the late .John Riuout, and of the Circumstances attending his imtimely Death, at the early Age of Kighteen Years and Six Months, by a Murder committed upon him by Samuel 1*. .larvis, on the Morning of the 12th July I8I7. .John Ridout was born in ;his Town, on the 9th .lanuary 1709. When Nine Years old, his Father took him to Kngland, and .sent him, as an Out-scholar, to the Blue Coat School in London, In about Six Months alter his Father's Return to this Country, he begged that he might also retin-n Home ; he did so, and went to School at Kingston, under Mr. Whitelaw. On the breaking out of the American \\'ar, in 'une 181?, General Brock having taken much Notice of him, appointed hun Midshipman in the Provin- cial Navy, and he served that Year on Lake Ontario. He passed the following Winter at Home, doing Duty here. On the Capture of this Town, in April 1813, lie was taken Prisoner, but was suft'ered to remain on Parole for several Months. In December of that Y'ear, One of his Brothers was appointed Deputy Assistant Commissary General, and stationed at Cornwall, in the Eastern District of this Province. As soon as he took Charge, being desirous to provide better for his Brother .John than the Prospects in the Provincial Navy artbrded, he applied to Commissary General Sir William llobinson for a Situation for him, and he was appointed a Commissariat Clerk in February 1811, at the Age of F'ifteen Years, and served with him during the Remainder of the War. At that early Age, he was so good a Boy, and possessed such Abilities, that he was placed in Charge of a Depot, about 25 Miles from (Corn- wall, where he supplied in Succession, as they were cantoned, the .3tli, 9th, and 81st Regiments tor about Three Months. In June 1815, the War being ended, and many Establishments broken up, they were ordered to Quebec, where he served until August 1816. At the great Reduction of tlie Army about that Time, he was discharged, with a Gratuity of Six Months Pay, and a very kind and handsome Letter from the Commissary General. He then once more returned Home, with a happy Heart, beloved by al! who knew him, was articled as a Student at Law to his Brother George, and faithfully performed his Duty, as he always had d the Rain came down in Torrents. After a few Minutes, he spoke, and lielu out his Hand, saying, " Jarvis, I forgive you." After a little while, John fainted ; Henry J. Boulton approached him, and with his Foot stirred his Body yes, put his Foot on the sacred Body of a gallant Boy, and said, " Let us go, he " is dead." The Three then fied to Town, leaving the dear Youth alone in the Agonies of Death, vomiting up Blood. I believe Mr. Small went or sent to George Playter, the Deputy Sherift", and D. Forest, and sent them out to the Field. George Playter was the first' who arrived. It was then raining, with Thunder and Lightning ; he found John was then, and had been, lying in a Pool of Blood and Water. When he saw Playter, he stretched out his Ilaiul, and said, " Is that you, Playter, where is " James Small? Where is Jarvis and Boulton? Ah! it vas foul I'lay." D. Forest then came up with a Carriage. John was put into it, and expired as they came opposite Dr. Macaulay's House, his last Words being, " I forgive " him, I forgive him. Tell my dear Mother not to grieve or lament for^my " early Death, for I am hapj)y ; in a few Minutes I shall meet my dear Sister " Sally in Heaven." Tlien he said, " I forgive Sam. Jarvis, I forgive him." Thus ended this heart-rending Scene. Now for a Moment consider the Ages of the Parties, and their StandiuT in Society, who thus acted in this Tragedy, and it will be seen that it was" not an Aflair between Boys and giddy Youths, as has been industriously represented to all the new Lihabitants of this Town. They stood as follows : Samuel P. Jarvis, aged Q5 Years, a Barrister at Law and Deputy Secretary of the Province. Henry J. Boulton, «8 Vpars, Acting Solicitor General. James E. Small, VJ and a Half Year.,, Student at Law. Such was the Disparity. Samuel P. Jarvis then went Home, and the Sheriff that Morning ton/i him out of a Root Cellar, where he had concealed himself. To shew the Light in which even his own Father viewed this horrible AfT'air, when he saw him he said, " Oh ! Sam, how could you kill that darUng Boy, the Flower of his " Family ?" He was his Godfiither. -t The i no ) The Coidiilt's lii(|ii('st tlifii w.is lii'Ul ;.t 1). Korvst's 'I'.ivi'in, tliiiint? tlio sitting of which hoirry .1. Hoiiltoii waikcil down tho niani Stivpt, towards Forest's Hotel, cool and apparently iinconcerne»l, and asked soniehmlv how all this happened, who were the I'arties, c^-c.,as if lie knew nothing abou't it. The .hiry !)ronght in a Verdict of Murder, as appears h\ the a7niexed C'opy of tlieii Iinpiest. L'o|)y of the t'oroncr's Iiupiest. An Inqnisition, indented and taken lor onr Sovereign Lord llu' King. ■„< York in the Comity of York, and Home District of the I'rovinee of I'ppi-i Canada, the Twelfth Day of .July One thonsaii.l tight hundred and seventeen, before ine, Thomas Hamilton, t'oroner ot' om- said I.ord the King tor saitl District, on View of the liody of John Kidoiit, then and there King dead, npon the Oath of Thomas Stoyell and fellow .hirors, good and lawful Men of said District, being duly sworn, and chargeil to enquire i,)r our Sovereign Lord the King, when, when-, and by what .Means the said .John llidont and one Samuel P. .larvisdid disagree and for some Time did quarrel, initil at length they the said John Ridoutandthe said Samuel 1*. Jarvis did cludleiige each other to end their Dispute by tighting ; and that the said Samuel 1'. .larvis, not having the Fear of God before his Fyes, but moved and seduced by the Instigation of the Devil, on the Twelfth Day of July in the Year aforesaid, with Force and Arms, in a Field commonly called Klmsley Field in the Town- shi|) of York aforesaid, did make an Assault ; and that the said Samuel P. Jarvis, with a certain Pistol of the Value of 10 Shillings, charged with (Junpowder and a Leaden Bullet, which he then and there held in his Right Hand, to and against the Rody of him the said John k'doiit, did then and th.ere shoot olf and discharge, by means whereof he the said Samuel P. Jarvis feloniously, wilfully, and of his Malice aforethought, did then and there give unto him the said John Ridout, with the Leaden Bullet aforesaid, so as aforesaid shot oft" and discharged out of the Pistol aforesaiil, by Force of the (Junpowder aforesaid, in and npon the Right Shoulder of him the said John Ridout, One mortal Wound, penetrating the Shoulder, Neck, ami .Fiigular Vein, froni thence to the Windpipe of him the said John Ridout, of which mortal Wound he the said John Ridout then and there instantly died ; and so the Jurors aforesaid, on their Oath aforesaid, do say, that the said Samuel P. Jarvis him the said.rohn Ridout, in the Manner and Form alljresaid, feloniously, wil- fully, and of his Malice aforethought, did kill and .nurder, against the'Peace of our Lord the King, His Crown and Dignity. And the Jurors aforesaid, upon tlieir Oath aforesaid, do sa)-, that .James E. Small anil Henry J. Bonlton, both of the same I'lace, (ientlemen, at the Time of the doing and committing of the Murder aforesailicil in llic Caiiailiaii Fivemaii ..I ilu- ■~'8tli IVbiiiaiy KS'.'H, iiiult-r tin- Sigiiiitmi' i.f " A Hi'lativf." The Canailiaii i-Vucmuii of tlio '.'Sfli Ffbiiniry I in'iiisod on ilu' AlttTiioon I that pay, ami on the 1st o( Marcli I uihliessfil the f(illowin« Lctti'i to •incs rifzirihlMjn Ksniiire. of ttiat Day ^ J:. .ly. et seq,"] The History of the Destruction of thi- ('oh)nihiaii Ailvocnfe I'ross by Oflicors of thr IVovincial Government of Upper Canaila, and Law Students of'tlie Attorney and Sohcitor (lencral, in o|)en Day, and in Prescnre of the Honourable William Allan, a Police Magistrate and Collector of the Customs, a d Stephen Heward Kscpiire, Anditoi General of the Culony. Hy William L. Mackenzie, Ktlitor and l»ro prietor. Part II. It was at Quecnston I had the News of the Destruction of my Property on tlic 8th Jii;ie ; and I instantly took such Measures as appeare(f lo me most judicious in order to obtain Redress. Mr. Small had been retained as Attor- ney by my Foreman ; and I lost no Time in ei..".'ctinfj; all the Testimony I could obtain bearing ;ipon the Transaction, a Copy of whicii 1 sent down" to my legal Adviser, Mr. Hidwell, at Kingston. As the Names of Messrs. Allan and Heward bad been omitted in the Action for Damages, I was not enabled to ofler them that conspicuous Niche on the Trial which their Merits deserved, but I did hope that the Result of that Trial would enable me to do them still more ample .Justice with the Public, through the Medium of the Press; ami mv Anticipations have not been blasted. The Accounts published in the Canadian Freeman, and Kingston Herald, of .lune last were substantially correct ; I therefore make such Selections from their Columns as may serve to introduce the Statements of Individuals who saw the Outrage. (From the Canadian Freeman (>l'\r)th June.) Atrocious Outrage! Total Destruction of the Printing Office of the Colonial dvocate.— On Thursday last a Set of Men, holding high and honourable Situ- ations under the Colonial Government in this Town — a Set of Men, not irritated by Distress, disappointed Hopes, or political Degradation, but wallow- mg in Ease and Comfort— basking in the Sunshine of Royal Favour— enjoying every Right and Privilege of Freemen — ami cheered by the Tods of a loyal, peaceable, and industrious Population — formed themselves into a Conspiracy agauist the Laws of the Country — a Conspiracy against the Liberty of the Iress— a Conspiracy against the Public Peace — and between the Hours of .Six and .Seven o'clock in the Evening, while the great Enemy of Guilt as yet Imgered above the Horizon to restrain the Arm of the ordinary Despc rado, they attacked the Printing Office of the \)lonial Advocate, broke open the Door m the Presence of several Witnesses, ai,.l demolislieil Press, Types, Forms, Sticks, Cases, Frames, (iailies, .Stands, kc. &c., luitil the whole Mate- rials, which were new and of tiie first Quality, exhibited nothing hut one Heap of Ruins. Lest the Types might be picked up again and turned to some Advantage, large Quantities of them were carried down on the Merchant's Wharf and thrown into the Lake ! All this, we are infbrmeil, was carried on in the Presence of Two Magistrates, who viewed the Work of Destruction with silent Complacency! Txvo British Magistrates! Of clarum et venerabilc nomen! Two Police Magistrates of little York, it is said, stood coolly gazing on the open Violation of all Law, both human and divine, while the Son of one of them was engageil in the Work ! O ! tcmpora ! O ! mores ! Where is the Majesty of British Laxc, which says " every Man's House is his Castle?" Where are the Thunilers of Brilisl! Prolectiun, whose I'eals have been heard in 3 K the Ad m I *M w ( i^M ) the iilt.MMio.l r.n.U <.l the Kaitli, ami stiiuk 'IVrrnr int,. fli.' TTciirfs ..C tlie iiiOHl .list ..lit iiiul most lnriKioiiHol llif Cliildiii. of Ailam' Arc flii-y f<> In- ili'spiM-il aiul si-t lit ii()Ut?lil l)y the (.llicial Despi'imlois of ^///<■^ oik alone .^ IJv thu Liiwsor Knglmul a Man'n Hoiiso is liis Castle, no Matter what Ins i.iiDlicor private Coii.liut mav l.c ; but in /////<• York u seems that a Man s 1' louse is his Castle only -.vliile Ik- crouches to ollicial Arroj;ance ami licks iVe llamlol petty I'yramiy j an.l tiie Moment that the Dignity o Ims Nature recoils from Servility, his Castle is to he ra/eil to the very (i-oiiml • IJythis amlacions Ontrane the ' iheily ol' the Press has been assaileil. the Maje.ty of the Law otlemleil, the Kepose of private Life ilistiirhed, the llij;hts of jirivate Property violateil, the Feelin«s of a respectable Community iiisiiltcii, I'ublic Opinion set at ileliaiicc, ami a Trecetlent establishcil by the very Olhcers ol CJovernmeni — Men mo\inn ii. th (irsl Circles in the Colon^' — which, il lollowed by th.' "ower Orders, must overturn the ronndations ot Civil ^ocictv. Wliut will the eiilinhtetied I'eople of the United Stales say — what will the World say — when tiiey hear thiit Emissaries from the very Oflice ot the (ioveriior, assisted by high ollicial Men, broke open the private House of a Hritish Subject in oj)eii Day, in the Metropolis oi' a Uritish Colony, and laid waste his I lopeity in the I'reseiice of Two IJritisli M iiKist rates ? What will ihey say when they hear thatafter this nefarioiisOiitragehad thrown theSeat cfCloveriiment nitoone common Ferment. and that I'liicardson theSubject were posted up in every Corner of the Town for Two Days, the ollicial (Jn/ette was publis! ed, and not iily was there no Proclamation issued against the Ccmspirators, but, behold, it is notcveu mitical hij the n/fiaul KiJ/lnr ! I )oi;s not this oIKcial i 'onnivaiiee speak Volumes ? Does it' not show that this 'I'ransiicliou took its Rise in no common Source, when tht! Plan was executed by Men in the Pay and the Contidence of the Kxecntive, and connived at by the ollicial Ciazettei' What will be said of the free and independent People of Yo-k, if they allow tlie fearless Sentinel ol their Ili>,'hts and Liberties, a Free Press, to be ovcniowered by mam Force in their Street s.aiidpnblicly strangled in their Prcscnce.witliontliftingnptheirumted Voices against it, ami calling upon the Chief Magistrate to bring the Oflenders to condign Pumshmeiil ? If this Outrage be permitted to pass unnoti.ed, whose Pro|)erty, or even Life, can be said to be safi.; ? In unhappy Ireland, uniler the Administration of British Law, a Man is torn fr'Mn the Hosom of his Family, severed from his Friends and from his C;i>uiitry, and transported for Seven IVv/r.v, without Judge or Jury, but at the Mandate of Tu'u or more Mafiis/ra/es, for the simple ( 'rime of i)eing absent from Ins Dwelling between the Hours of Sn.i-set and Siin.n.e. In lilt/e York, under the Adminis- tration of IJritish Law, the private Dwelling of an Inhabitant is broken open, and his private Property destroyed, in the Vrcscmii oi Two Magislrates ; yet the Perpetrators of this foul Deeil walk abroad unmolested, and enjoy high and confidential OlHces of Trust and Emolument under the Colonial Govern- ment ! By the flagitious Outrage here alluded to, the Pcoi)le ot Upper Canada are thrown into a State of Consternation and Alarm, — Consternation at the unblushing Audacity of tlie Cons|)irutors, anil Alarm for the Safety of their Lives and Property in a Country where such Desperadoes arc ni the Pay and the Confidence of the (Jovernnieiit. Nine of the Conspirators have been identified and sworn to; and, in order to give the People a correct Idea of the Thing, it is necessary for us to state, tiiat Five or AV.r of the Nine are employed in the Offices of the (iovernor, the Attorney General, and the Solicitor General, as Clerks and Law Students!!! What will the patriotic Doctor Lefferty say, at the next Meeting of Parliament, when the Attorney General, in the loi/ul " Zeal of the Son of a U. E. Loyalist," exchu.ns " that the Americans invailed our Country, ransacked our Towns, destroyed " our Property, and murdered our (fives and Children ?" We think we see the Doctor's indignant Brow lowering upon him with the following appropriate Retort : " Yes, Sir, the Americans iii"aded us, and destroyed oiir Proj)erty as '• Enemies in open War j but Three Emissaries, as I am informed, from your " Oftice, and in your Fjnployment, invaded the private Abode o'" a Fellorv- " subject, and destroyed his Property, in Tidies of prnfound Peace ; yet they " afterwards renw^.^d in your Employment, and enjoyed your Conlidenee/' What What apppnr^ most I'Xtraoiilinniv iii tins niiqm"»s i- that i\>v i.Huial (Ja/rtto has hri'ii piihliHlifil n Scdnii/ Time iiiicc ilii' Oiitrngi' was joniniittitl, uilhoiit cviM' alliriliiig to it i mill id IIiis ('in'iiiiistancf, cuiiiilcd wiili the Sitiiatioiis ot till' CoUHpimtyrs, wc wish particul.iil)^ to ilin'Ct tho I'lihhc Attontion, {From lln I'/ijH-r Canada Kini^slim Hvrald ii/'^JOt/i Jam:) i'utriciiiii lliol at York. Such an Aiiiiilnlatioii ot vuhiabh; Fioporty — such a ilaiing Hreach ol the I'cacc, in tlic Fncc ot'llio (Jovcinment — such an fnsiih npon the Laws — such a Conspiracy and Ontrajic against the Freedom of the I're-, the I'alladinni o ( ivil l{ij;hts — was never hci'ore witnessed in this I'rovince, or any othi'r ( ohniy inuhr the Protection o'' British (iovernment anit Law. Tlie liiot was perpe- trated witli Dehheration and manifest {,'oncert , with what llie biwyers call " Malice |irepense." The I'erpctr or J' it are said to he attached to or coimocted with, and as it were set .. " and delef;at«;d from, idmosi all the Public Ollicis in York; Irom the Lieutena.it (iovernoi's ( )Hicc down to that of the Clerk of the I'eace. It is also stated to have heeii conniiitted in the Presence oi' Two Maj^istrates, who stood upon the Hank while tlie iliolers, amoiif? whom was a Son of one of them, were riotously carryinjj the Types from the Otlice to the Hay ; and these exemplary Conservators of the I'eace, one of them a Legislative (Councillor, and both of their loaded with Public Offices, witnessed the Hiot with apparent Satisfaction, at least without any Attempt to |)rcveiit the Violation of Law and Dt triiction of I'roperty. It is so stated ; but, for ti.e Honop; of the (iovermnent and the Province, we cannot but iiope there is some Misv some offensive Publication, may demolish the (iovernment Press, or the Office of one of the Magistrates whc countenanced this Kiot by looi\iiig on and not preventing it, when they had >he I'ower and were botiiul by oflicial Duty to do it, being commissioned and sworn to keep the Peace. A riotous Spirit is at any 'I'iine to be deprecated, and peculiarly so a^ the present distressing Crisis. In the Mother Country such is the Pressure of the Times, that Thousands of labouring Peo|)le, thrown out of Employment and in dreail of actual Starvation, are Iiurried by blind Prejudices and heatllong Passions to combine together and riotously destroy Power Looms and other Articles of Property belonging to the (Jbjecls of their Keseiitnient. The Ministers, Magistrates, and Peace Ollicers are wisely exerting tlieir utmost Efforts to tranquilliz(! and restrain the suffering and excited Population. Pecuniary Distress is already felt in this Country, and is likely to increase no one can tell to what Extent. In this Slate of Things, and amidst the political Disputes and Agitations of the Province, it cannot be wise in the Provincial Admini- stration to rouse the Spirit of John IJiill among tl.e People, by sanctioning the Example of a riotous Destruction of the Property of an Iiulividual with whom the Rioters or their ''■stigators are ofiended. Connected, as i he Actors in the lat- Riot i'|)pcar to be, with the several Departmentsof Goveriiinent, we sincerely hope the Public Authorities will not in i f ( ^m ) in Form ;uul Words mi lely, Ixit in Reality, condomn and ctrectiially discoiiii- tcnunro tiiu iinliappy Outrage, and thereby avert the Suspicion ot'Cloiniivancc and the consequent Odium whicli will otherwise inevitably be attached to the Government. already suflficieully ex|)lained the should The Preface to these Statements hath Ikginiiing of this Aft'air. It follows that 1 should now say s'oinel'liiMg of the Persons implicated, and such of their Friends as are luuler a (,'louil, in the Estimation of the Country, on account of their alleged Neglect of Duty and implied Acquiescence in the Kiot. I shall next |)roceed to select such Parts of the Evidence I obtained, as tend to throw a greater Degree of Light on the Operations and Intentions of the Gang, and conclude with a few brief Remarks. 1-— The Honourable William Allan, a Legislative Coimcillor, an acting Justice of the Peace in and Treasurer of the Home District, Postmaster of the City of York, Collector of Customs at the Port of York, IiLspect Still, and Tavern Licences for the Counties of York and Simcoe, ; Militia, a Commissioner of War Losses, a Commissioner 'tor of Shop, a Colonel of for forfeited Estates, a Commissioner to investigate Frauds in the Revenue, a Commissioner for the Erection of the Parliament Buildings, Vice President and Director of the Welland Canal Company, a Commissioner appointed to investigate Frauds in the Post Office, Treasurer to the several Societies, President of the Jiank of Upper Canada, a Trustee of Chief Justice Scott's and of Colonel Smith's Estates, a great Land Owner and House Proprietor, a Police Magistrate l()i- the Town of York, a Church-of-England Man. 2. — Stephen Hewaud Esquire, Father to Charles and Henry Heward, Auditor General of Land Patents, Clerk of the Peac? in and for the Home District, Colonel of Militia, Secretary to the Reverend and Worshipfiil Corporation for superintending and managing the Clergy Reserves, a Church-of- England Man. The next Eight Persons named herein are Rioters, Part of those who destroyed the Advocate Press, and were convicted by a Special Jury, in the Civil Action in the Court of King's Bench, Oct. 1820. Verdict *2,.'500, and Costs. 3.— Samuel Peters Jaiivis Esquire {convicted Rioter), late Private Secretary to his Honour the Administrator of Upper Canaila, Son-in-Law to his Honour the late Chief Justice of the Kinsr's Bench, Clerk of the Crown in Chancery, a Director of the Bank of Upper Canada, a Barrister at Law, a Lieutenant Colonel of Militia, a Duellist, who killed the Surveyor General's Son in the Field, when the latter was a Stripling and unwilling to fight, a Church-of- England Man. 4.— John Lyons Esquire (convicted Rioter), a confidential Clerk in the Office of hit '':xcellency the Lieutenant Governor (Salary ^tiOUa Year), Captain of Militia, Barrister at Law ; since appointed by the Lieutenant Governor to the very important Trust of Register for the Niagara District, in the Room of the late John Powell Esquire, a Roman Catiiolic. 5.— Henry Sherwood Esquire {convicted Rioter), a Student at Law in the Ofiice of the Attorney General, and Son to the Honourable Mr. .Justice Slier- wood, formerly Speaker of the Assembly, late Ensign in the Foiuth Leeds Militia, a Cleric of Assize, a Church-of-England Man. 6 — Charles Baby Esquire, a convicted Rioter, (Son to the Honoiu-abic James Baby, an Executive Councillor of Upper Canada,) Ensign in the Militia a Student at Law in the Solicitor General's Office, a Pupil of Doctor Strachan! a Roman Catholic. 7- — PETEn ( ) 7.— Petf.u M'DoiT.M.i. Ksquire, (^/ conriclc/l Rioter,) LiciitiMuint of Militia, an extensive Mercliant in York, a most intimate Frienil of tiie Ilonomable James Baby, a Roman Catholic. 8. — CiiARLi'.s RiciiAUDSov Ivsquifc, (rt com'ir/ed liinlcr,) Barrister at Lav, (then a Stndent at Law with the Attorney General,) Lieutenant of Militia, i. Pupil of Doctor Straclian, a Commissioner Jur taldii;^ Affidavits in the Court of King's Bench, .Son to Juilge Richanlson, a Church-of- England Man. 9.— Mr. James King, (« convicted Rioter,) Barrister at Lau\ late Law Stndent in the Solicitor General's Office, a Ch-rk of Assi/e in the King's Bench, an Ensign in the Militia, aiid a Commissioner for taking Affidavits in the Court of King's Bench, a Roman Catholic. 10.— Mr. Chaules Hf.waiid, (rt convicted Rioter,) Son to (Xo. 2.) the Auditor General of Land Patents, Nephew to the Attorney General, and his Law Student, a Lieutenant of Militia, Pupil to Dr. Straclian, a Cluireh-ot- England Man. 11.— Raymond Bahy, (in the Riot, and Evidence for the Plaintiff",) Son to the Inspector General of Canada, an Officer of Militia, a Pupil of Dr. Strachan, a Roman Catholic. Note.—l-a consequence of a \\c\)\y to Veritas, in the late Kingston Herald, / have stated tdio tare of the Church of England, and Doctor Strachan's Pupils, and have init nc'a: Appointments in Italics. i Voluntary Statement of Thomas Hamilton, Esquire, Coroner for the Countij nf York, signed Inj him at York, 3d July 1S2G. About Seven o'Clock in the Evening of the 8th June 1 saw Doctor Powell, Samuel P. Jarvis, and Peter M'Dongall, walking along Palace Street. When they came opposite George Street, the Doctor turned up it, and left them ; the other Two went forward in the Direction of the Advocate Office. A few Minutes afterwards I (who was standing all the while at the Corner of my own House, at the South-west Corner of the Market Place,) saw a Number of Persons, some from the Attorney General's Side of the Road, some down the Street where the Post Office is situated. They, amounting to a Dozen or Fif- teen Persons, as I suppose, stopt for a Moment on liie Hank in Front of the Advocate Office ; they then appeared to go in towards the Office in Indian File, one after another, at a quiciv Step. I thought it was Sheriff's Officers, and that they had raised a Posse. The actual Facts never struck my Mind. Mr Hnmi)hreys was witli mc. I soon after heard a terrible Crash, as (f some- thing /ailing (in that Direction). I said to Humphreys that something was wrong, and set off at a quick Pace towards the Advocate Office. I saw 1 hree Persons come out carrying something ; they ran very fast down to tlie W hart, and appeared to throw their Loads into the Water. I afterwards saw the lype Boxes floatincT. During this Time Colonel Allan xvas standing at , first outside, but afterwards inside his Gate. I think he had a Child in his Arms when I arrived at the Spot. When I got near to the Flace thei/ dispersed ; some of them came out, and u-ent in again. Major Hexeard was standing outside Colonel Allan's Fence talkin"- to Allan, who was inside. If I was on my Oath, I could not have supposed it "possible for any Man to have stood where Allan was, and yet been ii/norant of what was 'going on, and that there xcas going on that whicn xcas not right. Ixcalkedpast, in Front of Colonel Allan's, and met Mr. Maeaulay coming upjrom under the Bank. I spoke to him. He went up to where Mr. Al an vvas standing with Mr. Heward. Colonel Ilexvard, being where he was, could not but have seen what passed. On returning I stopt at the Office ; tl-ey asked me to walk in and see the Destruction ; and the Sight struck me with Horror. I saw all strewed about. Desks and Forms broke to Pieces and smusheil to I leces, tlie Stone thrown over, the Press upset, and all like Desolation. (Signed) Iiiomas Hamilton. 3L fel i ( 'J€U ) Mr. Hamilton added, that, in breaking open a Dwelling House, tlic lliotcrs did what Indians would not have done. If a Stick is set by the Owner of a Cottage Ml a certain Direction, to siiew he is absent, it is sacred in tiie Eyes of ail the rest, none of whom will enter the Abode. Voluntary Statement of Mr. William MuiinAv, of the Toxm of York, Carpenter and Builder. Beiaveen Six and Seven o'Clock, as I w.ts going up to Tea from the Wharf I saw Light or Nine Persons standing at the Corner of t!ie York Bank earnestly discoursing together. I believe them to be Part of the Gang who destroyed the Advocate Office. I stopt at Tea from Twenty Minutes to Half an Hour • and on my Return towards Cooper's Wharf I (when on the Bank in Front of the Advocate Office) met Three Men coming out at the Office Gate with Ihree Cases of Type; Two proceeded, but the Third appeared astonished at seeing me there, stopt, and partly turned as if to go back ; at last, however, he followed his Comrades with his Load. This strange Appearance made me turn round to see where they were going. They made towards Allan's Wharf and threw Boxes and Types into the Lake off the Wharf. The Moment f turned round to see what they were to do with the Types, /jr«a> Colonel Allan standing in Front of his own Paling, close Inj the Corner ; no Person was with turn then, or near him ; he teas looking distinctly toxtards me and them ; I took particular Notice of Mm. At this Moment James Baxter (an Apprentice) came out in Front of tlie Office, and called aloud, that Persons were tearinff down the House or the Press ; and asked Assistance. He requested me to assis^t hiin • but I was only One, and thought that as Colonel Allan did nothing, who teas a Magistrate I had better not interfere. James Baxter came out before they had got to the Lake with the Types^ / have no Manner of Doubt in mij Mind but that Colonel Allan heard James Baxter call out for Assistance, and saxo the whole as well as I did. He made no Effort to quell the Riot. When the Three Men ran down over the Bank, the Types rattled in the Cases, and a good many tumbled out on the Road. I looked over the Fence inside Mr. M'Kenzie's Court-yard, and two or three of them were busily employed throwinnceahnent, and ajiarc at the Itmc oj the Reqmnsihility theij would incur. An OHer of Indenniity the ac ual Extent of the Injury would have been tendered immediately, Jmdjess Clamour been raised, ancf less Exertion used to prejudice the Public' The real Cause of the .Step is well known to all ; it is not to be ascribed to any Malice, poht.cal Feehng, or private Animosity. Tlie personal Calumnies oJ the latter Advocates pouit out sufhciently the true and on- Motivi's that prompted It ; and J have now to offer to pay at once the full Valu of the Danuv^c occasioned to the Press and Types, to be determined by indifferent and com- petent Judges selected for that Purpose. Will you inform me how fhr your Client IS disposed to meet this Proposal ? ^ This Advance is in conformity with the original Intention, and must not be attributed to any Desire to withdraw the Matter from the Consideration of a Jury of the Count.y, should your Client prefer that Course ; but in that Event It is to be hoped no further Attempts will be used by him or his Friends to preiudice the Cause now pending, nor any future Complaints be made of a iieluctance or Hesitation to compensate voluntarily a Damage merely uecii- niary, although provoked by repeated Assaults upou private Character and iwards the h a Case of irdson, the ey General, 3 was going ■ the Peace, towards the le Biiy, and aw Student, bt but that d not, to my lis Outrage, in up to the ber of Men king to him i ; he liad a arvis. The M'Kenzie's tly agitated, entice, said kfood, Son to ;d him, " If .1ie Honour- k was going Mr. Heward ;he Attorney LUMSDEN. lowing Con- ther to him ntri/. Daniel ( '>.'-.^ ) Danii.i, HANcnorr, (brmerly Apprentice to liie King's Printer, ami aller- wards in my Ol^ice, C. French, ll. Ferguson, and several other iVrsons, testified that, at the Time of the Riot, the Advocate Office was one of the best in the Town or Colony, as fiir as they knew. William Doyle, Son to Mich.iel Doylc, York, aged about Fifteen Years, stated that he did not see tiic Attorney General or Mr. Fxecutive Counsellor Macaulay, either in or Witnesses to the Riot ; but that " Major Allan and " Colonel Heward were tiierc, standing opposite Mr. M'Kenzie's House, at the " Corner of Major Allan's, hut I cannot swear that they paid jjarticular Atton- " tion to this 'Matter. / l/iin/,- tlicij could not help sccin->- the whole, but I " cannot swear to that Eflect, as my Attention was more particularly engaged «• by the Mob. " York, 20lh June 1S2C.- (Signed) " WlLLIAM DoYM' " James Baxteu, then an Apprentice in the Advocate Office, aged Eighteen Years, since removed to the Oftice f)f the Upper Canada Herald. His voluntary Testimony, subscribed on tiie '2<)th of Juno IH'Jfi, is as follows : 1 was present when certain Persons, on the Night of the Slh Instant, broke open the Advocate Office by Force, and ilestroyed tiiat Establishment. I had locked the Door not Two Minutes before, and shut up the Office. I saw a Number of Persons pass the Parlour Wintlow ; tiiey had Sticks. I saw them enter the Courtyard. I tiien went round to the back Door of the Office, and found tiie Men busy breaking open the Office Door. A Number of them came in with Clubs or Sticks iu their Hands; some had Pieces of Cordwood. I afterwards went and told Charles French to run to Simpson's, and alarm Mr. Ferguson, the Foreman. I then went to tiie front Door of the Office, and saw Three Men go down with Cases and Type towards the Lake ; Charles Heward was one ; Charles Richardson was another ; Henry Howard, I tliink, was tiie Thirtl, but I will not swear to his being the Third. I then stood and looked at those who remained destroying the Property. I saw them pull down the Press ; throwing Types about ; they made them fly in the Air, and through our and Mr. Monros's Ganlen ; then Lunisden came up while they were yet in the Office. Before he came up, I told Mr. Murray to run for Assistance, which he diil ; but the Housebreakers had eftected their Escape before he returned with Uelj). Mr. Allan, the Police Magistrate, stood at his Door and looked on while the young Men from the Attorney General's Office carried down the Types and threw lliem into the Like. I am sure he could not help both seeing and hearing tiie Outrage. I shoulil tlimk it might have been heard almost at the Old Parliament House. The Iron Press, weighing about a Ton and a Half, made a terrible Noise in fill ling, as did the Imposing Stone. Allan never offered to stop the Proceedings. After the Types hail been thrown into the Bay the Auditor (ieneral came up and conversed with Allan at his Gate. I did not run to them for Assistance, because I thought them but a poor Refuge in sucii a Case : they ought to have come and done their Duty, or what was the Use of them ? Mr. Allan appeared to me to recognize the Rioters when they passed to the Attorney General's Office, they towards him, and he smiled as in return. Some of the Rioters went to the Office of His Majesty's Attorney General, and depo- sited their Sticks and Clubs there ; James King ran up by the End of Allan's House with a large Club in his Hind ; some went one Way and some a-otlier. Colonel Heward. the Worsliiiiful Clerk of tiie Peace, was standing on the Bank in front of the Attorney Gcnerars Office walking backward and forward all the Tii.ie. His Son Charles (and I think Henry also) were running off with the Types, which made a N\)ise in tiie Cases ; he coulil not lielp seein-' them ; and the Noise which die Mob made in destroying the Office he, or any one standing wiiere he was, must have distinctly heard. 1 have no doubt in my JMiinl ^^^ t'"it lie lieard and saw the whole from first to last, except that he could not see the Iron Press fall, he. from his Position. 1 am iK>rfeetly satisfied that he saw his Son running down witii the lypes to tlie Lake ; lie made no Attempt to prevent the Outrage. He gave no \Vord of Command, &l.; he did not interfere, but when all was over he joined Allan at Allan's Door. When the Gang broke up the Office, and began tearing 3 M ^lo^^''» ! • I t i ' I ( ?.1ll ) down tlic I'Atahlisliincnt, I did not luii to Alliiii. I»nt I cidlod out iiloiid Ibr Assistance to W. Murray, ni Allan's Hearing, loud onoiigli Cor Allan, or any body else at that Distance, to hear me if they were so inclined. I called to William Murray that they were tearing down the House, and reciuested him to go for Assistance ; and he went, but returned too I a: York.29tl.Jm.clH2(i. (Signed) Jamks Baxter. My Mother's Testimony, as to Mr. Allan's being present, is the same as the others; she saw a Man with a Child in his Arms standing befi.re Colonel AHan s Door, but does not know that Gentleman by Sight. She saw the Office ilestroyed J and being 78 Years of Age, and in feeble Health, was much frightened, and her Health affected by it for a long I'ime after. Jamks Mackenzie (an Apprentice) testified as follows -.—I was at Ten in mv Gnindmother's Room up Stairs, and heard a great Noise. I went down to the Office, where I saw Jarvis taking a Chase to the Front of the Office full of lypes; he threw them down out of the Chase upon the Stones ; the Quoins flew out, and the lype fell out ; then Two or Three more scattered them over the ^ arcl ; and .Jarvis took the Rules, bent them, and threw them away. After- wards Captain Peter M'Dougall came out from the Printing Office and said ' I think we have done enough." Three of them carried 'I"hrec Cases, and' threw them into the Bay; and I afterwards went and took out the empty Cases. When the Ihree were returni-ig they met Captain Peter, who said, " I think n T ''i'.V-', ''""'-' e"""f;'' "'irni.' They made a great Noise upsetting the Press. Colone Allan was standing at his Gate, with his Child in his Arms, smiliin: • he could not help seeing and hearing what was passing. 30th.iu,u.i82C. (.Signed) James Mackenzie. Mr. Andrew Wilson, Brother to the Kditor of the (Jeneva Palladium, then Irinter in the Government Office, stated as follows :— I met the Honourable J. B. Macaulay coming up (as I supposed) fro.n the Scene of the Outrage .mmediately after the Affair is said to have taken place. He was opp„site .nV"l lu. w° ' ^^T T'?"" Yf I'T"' ''"'^'> «t"'^'-.''»'l was laughingim node- lately all the Way ; he held his Hands on his Face as if to conceal his Fmotion. It excited my particular Attention, and I remarked to Bemietund younu Kane befbi-r'"'' ""'' ^° "''''''''"' ''"'" ''''''''^'* ^^ '^"'* ^ '"''' '•'■''"■'^ "' ''"^ Outrage Margaret Baxter stated as follows :— While I was in the Front of the House, and the Men carrying the Boxes of Type to the Lake, I saw ^\jloneI Allan standing outside of bis own Fence, looking in at the Outrage; he was looking at the Men tbrowing the Type into the Lake, as was Major Heward also. He was standing at a little Distance from Colonel Allan while the Men were carrying the Types to the Lake, and afterward- ' o joined Allan at the l'e7na)i. Mr. James Hogg, of Milibrd Mills. Ezra Annis, of Whitby. Mr. Small, for Mr. M'Kenzie, I'lainliff, Judge Mar struck off — l)efen( 1. Hon. William Allan. 1. !i!. Hon. Duncan Cameron. -> 3. Hon. (ieorge Crookshank. 'i. ■1. Hon. Alex. Arbuthnoi. A. 5. Mr. James Hogers. a. 6. - John Carey (Ob'-ervcr). (i. 7. Thonia.s llacey, Esq. 7. 8. John Cianible, Esq. y. !). W. (iambic, jun. 9. 10. Mr. Isaac Webb. 10. 11. - Janies Eorsvth. II. 12. - Jacob Shuiik. \2. David Boyer, of Markham. David Annis, of Whitby. Valentine Fisher, of V'aughan. Mr. Robert Johnson, of Scarboro'. Josejih Tomlinson, of Marham. Peter Secor, of Scarboro'. Edward Wright, of York. Joel Heniaii, of Yonge Street, and George Shaw, of York, - IQ, On the Bench, as presiding Jndge, sat Chief Justice Campbell with the ajorc said Hon. William Allan, and Alexander M'Donnell, Esquire, as his Associates. My Counsel were Messrs. Bidwell, Stewart, and Small ; and lor tiie DefcMidants .stood Judges Macaulay and Hagerman. The Attorney and Solicitor General wert both in Court, and the latter was accidentally made an Evidence on my Behalf The new Court House was greatly crowded ; and few Trials in the Colony have excited so much and so general an Interest in the Mimls of the People. As the Trial has been copied into five or six of the Provincial Prints, it is not necessary that I should do more than reprint some of the leading Facts, in addition to the Mass of Testimony already given, and which, if tried, will, I am assured, be found uncontrovertible. Mr. Bidwell, to w-hom I am under the highest Obligations for his timely Assistance, and for the Discernment and Prudence he manifested on this trying ( SS'i ) '1' Wl trying Occasion, addiessod the ('(iiiit find Jury in a .Speech which was mentioned in Terms oi' Approbation by ail wiio lieard him, yea, even by those who I'eit his Reproof. His Language was mild, but his Arguments were forcible, and produced a deep Kffect upon the M. t of the very intelligent and highly respectable Special Jury. I have Roon> only for a brief Extract. " It is needless for me, Gentlemen," said Mr. Bidwell, " to inform you, " that this is a Case of the highest Importance ; the very Circumstance of your " being called upon as a Special Jury to determine it shews that the Dcfen- " dants were afraid to trust it to a Petty Jury ; yet to them it is not a Matter " of the same Importance that it is to the PlaintilV; most of the Defendants " are Men of Independence, Men of high Connexions and ample Means ; but " to the Plaintiff it i^ a Case of most serious Consideration ; his Business, his " Property, the very Means of supporting his Family, have been destroyed j " therefore his all is at Stake in the Issue of this Trial, This Cose, Gentlemen, " is of the first Importance in another Point of Vie\ , inasmuch as it is the " first Instance in this Province of an Attempt, by open Violence, to destroy " a Printing Press ; and it is to be hoped that your Verdict will be such as to " prevent a similar Recurrence. Let it be seen by your Verdict that the '• Defendants, or any other Set of Men, are not to conspire together for the " Purpose of violating the Laws of the Land, without the Risk of a l)e;-vy " Responsibility. A free Press is considered, under our well-balanced Govern- " ment, as One of the main Pillars of the Constitution, the chief Stay and " constitutional Guardian of the Rights and Privileges of the People ; it has " been considered as One of the greatest Blessings under all well regulated " Governments ; we are all, therefore, concerned in Ma li a Case ; and an Attack " upon the Press must be to all a Matter of more than ordinary Interest. But " in this Case not only has the Freedom of the Press and the Majesty of the " Law been insidted with a hig]-, Hand, but the greatest Privilege of an " Englishman, the Privacy of his House, has been greatly violated ; yes, his " private House, where every British Subject is protected, by the strong Arm '• of the Law, free from Assault and Invasion, has been violated, and Property " to a considerable Amoinit destroyed. Are you not bound. Gentlemen, in " such a Case, to give exemplary Damages, in order to shew that no Man, " however high his Rank, shall violate with Impunity these sacred Privileges ? " It is true the Press, with all its Blessings, is subject to some Evil; as long " as human Nature and human Passions exist, there must be some Degree of " Alloy in every human Blessing ; some Abuse, which is, from its very Nature, " inseparable from it. But if the Press be at any Time licentious, the Law " of the Land is sufficient to restrain it; and if the Defendants in this Case " felt any Provocation in that Way, the Law was open to them ; yet I will not " admit, nor can they prove, that such has been the Case. The Law is so «' strict with regard to licentious Publications, that Editors of Papers are liable " to Punishment, even to the infamous Punishment of the Pillory, although " they may be able to prove that tliey never knew any thing of the Publication. " If then. Gentlemen, after such ample Restraint by the Law, you wish violent " and illegal Measures to be resorted to ; if you wish the sacred Privacy of the " Dwellings of our Inhabitants to be daringly violated ; if you wish to encourage " the Destruction of private Property; or if you wish to ruin not only the " Plaintifi' but his Family, you will give your \/erdict for little Damages ; but " if you feel, as Men sitting there ought to feel, for the Magnitude of this " Outrage; if you respect the Rights of the Subject and the Liberty of the " Press; if you wish to guard against the Recurrence of such disgraceful Pro- " ceedings, by placing a salutary Restraint upon all those who may be disposed " to engage in them, you will stamp upon this Transaction your highest Disap- " probation, by a Verdict for ample Damages. There is One Circumstance, " Gentlemen, which is entitled to your particular Consideration ; namely, the «' Character and Standing in Life of the Defendants. If they were ignorant " Men, of strong Passions, unrestrainetl by Education and stimulated by Provo- " cation, there would be some Apology for them ; but when we consider that " they move in the first Circles of Society, and, with all the Advantages of " Education, chose to resort to Violence and Mob Law, the strong Arm of the " Law should be raised against them. Look also to the Connexions of the " Defendants, ■^ ( m ) '• Deferulants. imd you will sec Ikiw mucli they iufsiimud on lliom in this Case. " It is not my Iiitrntion to eiulciivoin to make an Jinprcssion upon your I'Velinjrs " with a \'icw to olHaiii Special l)ama;,a's. The Damages are limited, and '• your Verdiet will be aceordinij to the Dictates ot' your Conscieuee ; but " it is yom- Duly to award Damajies in this Case, not only tor the Losses " .sustained by the riaintitf, hut tor tiie Insult oflercd to him by the violent " Attack upon lu> House, in the Absence of himsell' anil Fanuly." Here the Learned Gentleman quoted some Knglish Cases on this Point, and proceeded. '• I shall |)rovc that this was one of the most insidting and outrageous Acts " ever conunitted in this Colony. What, then, is to prevent the Kepetitioii of " such Acts? Ample Damages. 1 remember a Case where an Knglish .Fury " gave d'5(IO Damages for knocking off a Man's Hat, Here is the Kxample " of an Knglish .Jury and Knglisii Law, where the Jtighls and Privileges of " Lngiishmen are jjrojjcrly protected ; ami as you, (ientlemen, enjoy the like " Rights and Privileges, I hope you will be eijually disposed to protect them. " But shoidd you allow such an Outrage as the wanton Destruction of a " Printing Apparatus to go impunished, you will not only bring down Disgrace " upon yourselves, but on the Country at large; and your Verdiet, insteail '• of putting a salutary Restraint upon such illegal I'roeeeilings, will serve as " a Signal l<)r general Outrage against every Printing Press in the Country." The Evidence juoduced had its full Weight witli the .Jiu'v. Tlie Rioters employed Mr. Hagerman to speak in their Rehalf, but they called no Witnesses. They denounced the Colonial Ailvocates from first to last, especially the latter ones, as licentious ami abusive ; but they neither produced the Files, nor quoted the Papers they disliked. They even condescended to beg for Opinions of my Apprentice Roys as to the Character of the Publication. The Solicitor General, Mr. H. J Boulton, made one Remark, as an Lviiieiice, which excited much Merriirent ; he said, that he " valued Character nuieh more than Pro- " perty, an(- ould rather that a Person would rob him of a Horse or other " Property tnan take away his Character." Truly he need be under very little Apprehension on that Score ; his Character, such as it is, will not be very likely to cause an early Infraction ol' the Tenth Conunaiulment. It was my earnest Wish to ha\e asked suc!i Questions of the \\'itnesses as would have placed the Conduct of Messrs. Allan and Ilewartl in its tru(! Light ; but I felt, that in an Action for Civil Damages it was best to be gnideil by Counsel, and they iniilbrmly assured me that such Questions would be })ro- iluctive of Evil to the Suit, as .Messrs. Allan and Hewaril were not among the Defendants. It was likewise asserted by Mr. Hagerman, in his closing Speech, (not from any Evidence adduced, but merely because he wished, on false J'remises, to give an unfair Bias to the Jury,) that I had left York with the Intention of wronging those to whom 1 was at that Time indebted. Nothing could be more false, groundless, or calunmious than such a Charge. Had I anticipatee deliiyod, or no Verdict rt;liiriifd, tlip Conscqiicnres would f<>, and one Man, " (ieorf,'e Shaw," lor XIM, there was small Prospect of an Agreement, Shaw, as I afterwards learned, brought into the Room with him Cases in Law, which he read to his I'ellow Jurors, in order to convince them that I ought not to get the Damages I had so clearly proved ; but his Logic was of no use ; Public Opinion was strong and decided ; and although I hud not written One Line for the Press from the Time of the Riot until the Day of the Verdict, and although the Jurors were all nearly perfect Strangers to me, they determined to struggle with Cold and Fatigue, and even Sickness, rather than trample under Foot tlie boasted Justice of a British Jury, They stood it out in that cold Room nearly Thirty Hours ; some of them old grey-headed Men ; some of them were sick ; but they bore it with Patience. One of them, Mr. Jacob Bryer, a respectable and worthy German, ihh himself very ill indeed, and Dr. MCague was sent (or, wiio bled him, and he reco- vered, and stated his Determination to lay his Head ujiou his Cire:it Coat anil 8to|) another Day, before he yielded against his Reason and the Kvidence he hail heard. Shaw (as I am in(ornied) at last gave in ; and a Verdict of S2,.0(JO, besides Costs, was awarded in my Favour by Robert Rutherlbrd, Esq,, their worthy Foreman, and assented to by his Fellows, And here let me express a Hope, that no Injury may ever belid that honest Irishman and his Comrades, i'or having justly, faithfully, and courageously performed their Duty to their Countiy on a very trying Occasion. That Verdict re-established on a i)erma- ment Footing the Advocate Press, because it enabled me to perform my Fngagements without disposing of my Real Property ; and altljoii-ii it has several Times been my Wish to retire from the active Duties of the Press into the quiet Paths of private Life, 1 have had a Presentiment that I should yet be able to evince my Gratitude to the Country which in my utmost Need rescued me from Destruction and utter Ruin, In a short Time the Amount of the Verdict was paid to Mr, Small by Mr. Macaulay, and faithfully paid over to me when received. The Judges taxed the Costs in such a Manner a„ only to allow je'5 5s. to Mr. Bidwell, and Two Guitieas to my other Counsel, ai uigh the Action was unequalled in the Annals of Canadian History. It is saia they allowed Judge Hagerman .£r>0, but of that I am not certain. f he Grand Jury in Assize Times usually consists of Persons in favour with the Local Government, without nuich Regard being paid to their other Qualili- cations; in proof of which, one o) the Rioters, a Mr. Peter M'Dougall, who can scarcely read or •write, rats chosen hif the SheriJ}'to sit as Grand Juror at the last Assizes ; and other equally inconsistent Selections might be mentioned. Even Judge Canq)bell, as 1 learnt, found fault last October at seeing always the same Faces in the Grand Jury Box. But be they what they may, they sent for me, and I, in reply to Interro- gations from their Foreman, replied, that I had no Intention to prosecute the Rioters criminally ; that the Verdict and Costs (about »3,O0Q) would come heavy on some of them, and probably operate as a Caution for the future, while the Loss of Place and a Chance of early Preferment would be a timely Warning to others. Little was I aware that at this very Moment Colonel Fitzgibbon, one of the Magistrates of this Colony, was begging the Amount of the Verdict ; and that Sir Peregrine Maitland was seeking how he could best reward loyal Riot, and put impertinent Patriotism to the Blush. I know all this now ; and Canada and En-land too shall know it before I am done with the Party. It was a Wonder to many that the Attorney General did not institute a Irosecution of some kind or c her ; but there can be no doubt now that there was a Party in the Plot not then thought of. A Writer ( s?i ) A Writer ill tlii' Kintfstdii Floral. I t\|)l;iiii> inv Cindiu't vorv t«irri'rtly, as Ibllows : " Tlif iiiiiiieiliate Cliaigo ot iirosecuting lor this as wrll as otlu'r OlK'iic'C!* " against Law belongs to the Law Olticers oCtlieCiovernmeiil. Mr.M'Kenzie, " the I'aity injiireci, only brought his Action to recover Damages for the " aggravated Injiirv- siistaineil by liini. That was his proper t'oiicern ; but he " was not a prosecuting or informing Olfic ■ He hail no more Interest than " any other Imlividiial in the Fiinisliment of the OHunce ; he could not even " l)e a Witness to prove it, having been absent when it was committed ; nor " did the I'liblic Pidsecutor need any Information from him, the riotous " Ureach of the I'eace being pnlilic, and the Witnesses well known. On this " Subject, Mr. M'Kenzie conducteil himself with great Propriety. Me main- " tained liis own Cause, and in so iloing defeiideil tiie hights of his K'How- " subjects ; but lie did not usurp the .Authority of the Crown Ollieers, " charged with and responsible (or the Kxeeution of the Laws for the " Punishment of Crime and tiie Preservation of the Peaee. If the Attorney " Cieneral, knowing that his Olliee was the Place of Rendezvous lor the Per- " jietrators of the most flagrant N'iolation of the Law that ever occurred in the " Province, has indeed been their i'lirse-liolder, to receive Money subscribeil " lor their Ueliefi instead of prosecuting them by Iiidictmenl, in the Name of " the King, lor their wanton and notorious OHence, what ( onfiileiice can His " Majesty's Subjects at large have in his Impartiality as the Public I'rosecutor ;■' " I hope it will turn out that the I-'rcriuan was misinforiued. Suppose the " Parties had been reversed, and the Printing Olfice destroyed had been the " Government Press, and the riotous Persons politically ojiposod to the Attorney " General ; in such a Case, would a high-handed Riot, committed in the Face " anil Eyes of the Government, have been sullered to pass unpunished, in evil " K.xample to others in like Cases to otllnd against the Peace of our Lord the " King, His Crown and Dignity:-' The Answer may be found in the well-known " Story of the Farmer and Justice: — It was his VVorslii|)'s litill that killed the " Farmer's Cow : thut alters the Case." The Attorney General was lui. the Purse-holder j he left that Depart- ment to his honourable Colleague Mr. Executive Counsellor Macaiilay ; and the only Reasons I have e\er heard adduced against a Criminal Prosecution are taken from Judge Hageniian's Speecli in Defence of the Outrage : — " It is wondered that these (ientiemen were nut indicted (or a Riot ; " but the Attorney Cieneral would not do so, because if he had it would " immediately be said tiiat it was done with Iiiteiiiioii to destroy their " Prospect of Damages ; so that it was diHicult to know how to act." Government Subscription Purse. Mr. Collins, the Editor of tlie Freeman, continued from Time to Time to advert to the Means by which it was reported that the Rioters had got clear of the Damages awarded against them, and in the End obtained an Acknow- ledgment from Colonel Fitzgibbon which even his most sanguine Expectation had hardly anticipated. We shall here .^ive a few Specimens of his Arguments. " Outrage patronized und suppur ted. — We are informed upon good Autho- " rity that the Sum of .^625, the Amount of Damages awarded by a iSj ecial " Jury to the Proprietor of the Colonial Advocate for the Destruction of his " Printing Office, has been raised by private Subscription among what is " called tlie Ministerial Party of this Town ; and that so cheerful and general " were the Contributions, that few, even among the Conspirators themselves, " were called upon to advance a larger Sum tliaii Ten Dollars! From- this " Circumstance we anticipate in a short Time the total Suppression by Mob " Law of every free Press in Upper Canada ; for where is the corruj)t Tool " of Power who would not contribute' Jew, 2'tt'e«(y, or T/iirtj/ Dollars, to su|)press " a Machine that is his chief Terror, particularly when he can command by " his single Nod the Services of a .Set of Bullies among his Relatives and " Dependants? .i 025 are paid for the Destruction of One liee Press out of " Three •I i t i m ■ If ' ( •^30 ) • Thitc ill Uppci Cuiiaila, liy Sul)s< nl' 'I'cn L..".j:s oiuli ! (■ •.■a'tiiiv i( '« will only rciiiiiie Two oiIkt Siilaiii!!t rnnii the oftiiial " I'rt'ss viuiif;," one «< in Yolk iitiil tlif other ill KiiigHtoii, at Tin Dollars eacli, to siijjpicss every " thing in the Sliapi; oC 11 f're In; (headed \>y the iVgents of Cor- " 'Ufjtioii as ;. free I'ress ■* Were it not for a free Press, the Ministerial I'arty " in the House of Assembly of this (.'oiony, instead of a miserable Mino'!«y " of Ten, would cominand a sweeping and overwhelming Majority Had 'i " been the {.'ase, .i 11,000 in a Service of I'lute wouUI long since havo been '' . '., *' the Tabl" of Sir I'eiegrine Mnitland, ns was the (!ase witli (lovernor Ci.-'cj " and aiiollnr permanent private Senicr Kiinit of ^''^,,'300 u Year votea to " grease the Hands of old, fiiithful, and hidaOk Servants, all at the Exjieiice «' of the People of this I'rovinee. Were it not for the Press, Judge Hagerman " would be u Member of our Assembly, and would have voted to his Friend " the Attorney (Jcneral Tfirci- thousand Pounds last Year for going t'. London " on executive Hiuiiiess (as he did some two or three Years ago), instead of " £6r>' tiiat he received. Were it not for the Press, the early American " Setiiers, who tamed the Rudeness of tiie Forest, and made it ' blossom like " the Rose,' would not only long since have been disfranchised and turned " out of Office, on the Call of (.'atliams, to make Room ibr himself and his " Friends, but probably robbed of their Property, the Reward of the Toils " and Hardships of many Years. Wt . it not lor the Press, Gangs of oflicial " Desperadoes might range the Streets of York, meditating Vengeance against " t'lH Persons and Properly of their Fellow-subjects, and put their Threats in «< execution, without ever ')eing presented by a Grand .Jury or indicteil by a " Crown Officer. Were it not, in fact, for the Press, u few Agents of I'ower might •' sit in secret Conclave, form Scliemes for their own Aggrandizement and the " Oppression of their Fellow-subjects, and put their Plai. > into Practice, to •« the Ruin of the Country, witllO'^^ the People being able to know from •• whom or whence originated their Misfortunes. Is there then a hungry " fawning Expectant about the Halls of Power? Is there a sleek aspiring " Incumbent of Office, who would grudge to pay the paltry Sum of Thirtt/ " Dollars to get rid of such an Incumbrance? We believe not. Hut should the " Desperadoes choose to economise, by coming i.u Hour or Two later, with " a little Lamp-black on their Faces, to save the Thirtij Dollars, what Remedy " is thr.e to be obtained in little Yorl,-, where the Sum of d:(.\<25 can be <« raiseJ in a few Hours among the natural Conservators of the Peace, at Ten " iJo//ar5 each, (except a few Heads of Departments, who are said to have •' contributed an Hundred Dollars each,) to defray the Expence of a flagrant " Noon-day Outrage." Such Remarks as these, added to a Hint that Sir P. Maitland's Nai.ie was at the Head of the Subscription List, produced from Colonel Fitzgibbon the following very remarkable Avowal. To the Editor of the Canadian Freeman. Sir, York, 1st June 1827. In your Paper of Yesterday you make Allusion to me, and say that his Excellency's Name was at the Head of a List carried about by me in order to indemnify the Rioters, and pay the it'G26 awarded against them by the Jury. My Conduct Jipon thai Occasion was dictated by a Sense of Duty ,- and I have not a Wish for the Concealment qf any sin<;le Step I took in the Accomplishment of the Object I had in view, and which originated entirely and spontaneously with myself. My only Olyect in publicly noticing your Assertion is, to state that, as respects his Excellency the Lieutenant Governor, there is no Truth at all in it. I know that his Excellency never contributed a Shilling, either directly or indirectly, towards the Fund you allude to, nor have I a single Reason 'o suppose that his Excellency ever I card a Syllable of such Contribution. ^ I do not make this Declaration to defend the Character of tlio Lieutenant Governor from the Aspersions of u Public Calumniator, because, as far as regards ( **7 ) rofjanls his Kxcolli'iii'yi H would In.- s neiriiii)u«i (m iiu' in dosn; liiii I'lnig alliuled to by )'oii, aiul bcit knowing tlii' (ircuniMtaiui s nl' ilic riiinsactinii you luivi' nusrcprcscnfed, I decni it my Duty to f,nvi! a I'ublic Contradiction to your Statcmt'iit ; tor there are many honest well meaning' IVrsous, lilile acciuaintetl with the hold C'ontiilence with wh'eli I'alseliood is now so tre(|uently |)ul forward lo T.ict, who must naturally he e that such Statements cannot he so nuuh at variance with tlie Truth a ilicy actually are, especially as the Tahricators of those Calumnies so uij^ern sly mix up Kact anil Falsehood, as easily to ileceive the inexperier.ceil Keader. I'liits upon the •nrll-knir.iH Fact that I intircstiil mi/sclj' to ohtai.i Assistance Jitr Iiidiridiuils ahoiit to u/J/ir/iir CoH' duct •chich I considered as the iiuvilahle Result of the iric/idence returned a Verdict against the Rioters foi " £6'25, have perjured themselves by fining Men who ought to stand indem- " nified, or Colonel Fitzgibbon's Conduct as a Magistrate, in endeavouring to " shield them from the Verdict, was infainous ; there is no Alternative. Rut " the Colonel says the Outrage was ' the inevitable Result of the Wickedness " of others ;' that is, that Mr. M'Kenzie called the Rioters, or their Friends, " bad Names in his Paper ; and that the Destruction of his Printing Office " was consecjuently altogether unavoidable on the Pa.-t of the official .^Iob. " Again, taking the Colonel upon his own Principles, he says his ' Conduct " upon tl. t Occasion was dictated by a Sense of Duttj ; and he has not a " Wish for theConcealment of any single Step he took in the Accomplishment of " the Object he had in view, ~^liich onginated entirelij and spontaneousli/ xcith " himself If then it be a Thing of which the Colonel feels proud to avow " aimself the sole and spontaneous Origin ; if it be no Disgrace for a Colonel " of the Militia, a Deputy Adjutant General, and a Justice of the Peace, to " subscribe himself and beg from others Money to defeat the F^nds of Justice, " and keep indemnified al3and of convic' .'d Rioters, why should he call it " ' Pu!)!ic ('aliiimy ' to hint th.at Ills Excehencv had his Name at tlie Head of I ( 'J.-i8 ) « tlic List ;■- li' it be a good ami laudable Tiling, why not give iiis Excellem-y " a Siiare in tiie Honour ? It' ilisgraceful, wiiy ' spontaneously * avowed by " the Colonel ?" , -■ . r • " With respect to his Excellency not knowing any thing ot the List, nor " contributing to it, we are happy to see his Excellency's Innocence established " by the Evidence of a Man without whose Knowledge it would seem that " it is wholly impossible for his F.xcellency to do any thing ! for we view _ the " Measure, flowing ' spontaneomh/ ' as it did from the Eountain of official " Corruption, to be the most unjustifiable, tlie most infamous, and the most " assassin-like Attempt to stab the Rights of the People that has ever occurred " in this Colony ; a Measure which puts the Laws and the Constitution at " defiance, and renders Trial by Jury a mere Mockery ; a Measure which " strikes at the Foundation of civilized Society, and places cultivated Man " on a Level with the Savage ; a Measure which leaves the weak at the Mercy " of tiie strong; and, finally, a Measure which encourages the grossest of " the human I'assions, by offering to the malicious and vindictive Heart the " ricliP'^t, most alluring, and most direct Premium for Villainy and Outrage — " Indemnification in his Guilt ! Where, we ask, is the oflScial petty Tyrant " that fancies to himself that he has received Provocation by 'the Wickedness " cf others,' who will restrain his Arm when he has such Tools as James " Fitzgibbon, tiie successful Pander to official Depravity, to sneak privately " about from Office to Office, and beg for him an Indemnification from the " Verdict of an honest Jury of the Country ; and when tlie Outrage is too " daring to be atoned for by the poverty-struck Officials of little York, to " apply by Letter to the Brethren in the remotes' Parts of the Province ? IJut " now that the Agent in this foul Conspiracy to defeat the Ends of Justice " has boldly avowed the Fact, we hope the House of Assembly, the natural " Guardians of the People's Rights, will do their Duty ; that they will probe «' the Affair to the very Bottom ; and that they will let our ' spontaneous " Calumniator' know, that the Person Xiho publicltj avov:s that his Jnler/erence " to counteract the Intention q/' the Law, and defeat the Ends (J' Justice, ivas " ' dictated by a Sense of Duty !' is not a Jit Person to fill an Office in Legislative " Halls ; and that they will ' purge ' their House (as Dr. Strachan says) from " such Impurity." Captain Lyons. — I had discovered on several Occasions that General Mi'itland is extremely uneasy under personal Attacks upon his Character ; and when I had allowed Weeks to elapse without perceiving in the official Paper of the Province the least Notice of the Riot, and learnt that all t'lc Delinquents remained in Place, I soon saw through the Plan of the Ministry. His l^xccl- le.icy was to appear ignorant of this notorious Riot, kaving it to the Trio (Hillier, Robinson, and Macauiay) to get out of the Scrape as easily as they could. I found that his Excellency was to make one of his Pilgrimages between Queenston and York, by the Frontenac Steam Boat, and I judged he would call at the Post Office in passing. I prepared a Selection from the York, Rochester, Kingston, and Washington Newspapers ; in several of which Sir Peregrine got the Credit of chief Instigator of the Press Riot, and inclosed them in a blank Cover, along witli a Letter i'.om Mr. Gourlay to J. B. Robinson, cont'aining sundry suitable Admonitions, and directed t'lcm " Care of Sir " P. Maitland on his Way to York." This Package I sealed and sent to the Post Office ; the Clork delivered it to his Servant. In the Steam Boat lie had Time to look over las Dispatches, and the Result was the Dismissal of Captain Lyons frr'm his rnnfiiontial Situation in his Office, and a brief Notice of' the Riot in the next Saturci;iy's Gazette. This was all forced Work, however ; and Captain Lyons was soon reinstalled in the very resjionsible and lucrative Post of Register oi' the Niagara District, vacant by the Death of Judge Powell's Son, and is now a Barrister in the higher Courts of our immaculate judiciary. From one End of this Continent to the other the Press cried, " Shame on the " Press Riot," but in Canada it cried in vain. Such Services as the Rioters performed are not often soon forgot. Even Colonel Fitzgibbon met liifi Reward in an Ajipointment to the Head Clerkship of the Assembly of Upper Canada ; but there will probably be an if or two before Installation. During ^ ( 'JSy ) During the TiiiK' my I'ress was ilormant, iiii iinonymoiis Writoi in tlie Lewiston l'ai)er(aiul who I asrertained beyoiul a Doubt to be thai sycopliantic Tool wlio toltl so many Untruths of Mr. Gourlay, and who now writes blackj^tiaril Nonsense by the Sheet a^ 'Vatkin Miller,) was prevailed upon by the Maitiands to undertake tiieir Case for a Consideration. Don Quixote and his Hlue Stocking termeil their joint Effort " A Subscriber," and meanly attempted to tlive into my personal AHairs, and do me harm with the Public at a Time when I could not reply. I despised them Anioval of One of the King's Jiiilges lioni Office. . ,, , ^., ,,,, ,. . Situated as I now am. I Hnd mysdt in a painful Dilemma. I he i-arlicst l)ossil)le Knowledge of the Accusations against me is, of course, most (icsirahlc. The Means of obtaining it, siiould 1 desire my Solicitor to t^ngage m this Stage of the Business, and take these Copies, must of necessity he productive of very "•reat Expence, which mv being deprived of Salary, and lui'ing experienced heavy pecuniary Losses," hitlieito uncompensated, and arising from Cuciim- stances not within my Controul since I went to Upper Canarcach of any established Regulation, the orignial or dui)licate Documents could be entrusted to me, 1 would venture to solicit that they might be immediately sent to me here, jjledgmg mysell carefully to preserve and duly to return them with all reasonable Dispatch. If this cannot be permitted, it will only remain for me to proceed to London, and forthwith i)ersonally commence the Task, as the lei.st exi)ensive, ami. neiliai)s, the most respectful Mode of Proceedintr. I have to repeat my Thanks for the Consideration already shewn to me at the Colonial Office with reference to these Tajiers; and, requesting to be favoured with an early Answer, I have the Honour to remain, .Sir, Your very obedient Servant, ,.., . rSicned) .John Walpoi.i; Wri.i.is. The Right Hi>n. the SecreUry ol btate, v » -' Colonial Depiirtmenl. ^^ No. 23. COPY of a Letter from Mr. R. W. Hay to Mr. Willis.— One Inclosure. jj. Downing Street, «th Seiiteniber IH2H. I AM^'directed by Secretary Sir George Murray to acknowledge the Receipt of your Letter of'the 6th Instant, and to transmit to you the accompanying Opinion of the Attorney General of Ui)per Canada; being the only 1 aper in Duplicate connected with the Proceedings of the Executive Council of that 'Province in your Case which has been received at this Department. Sir George Murray desires me to add. that Copies of the other I apers an. Documents relating to your Case are in Preparation, a>Hl w. 1 be torwarde. to you when ready, which may be expected towartls the End of the present Week. I am, &c. ■ , ,.. ».n r (Signed) U. W. Hay. John \V. Wilhs, Ks(]. ^ o ' No. 2 k COPY of a Letter from Mr. Willis to the Secretary of State for the Colonial Department. ^^._ ;i5, I'HikSlreel, b.ilh, IDthSepl. IH2H. I BEG you to accept my very sincc.e Thanks for tiie Document by Mr. Robin- son, which, reacliLd me Yesterday ; ami perhaps as it is printed, ami there is a Duplicate, I may be permitted to retain >t- , ^, ,. ,,.,,. ■ • i I have also to express the high Sense of Obligation I feel tor your k.m Consideration in directing the other Papers to be copied, and sent to me at the Period you have mentioned. , ,, ^ *^" ^ ] l,,^^.^. tiie Honour to remain, Sir, Yonr very obedient Servant, (Signed) Joiiv Wali ole Willis. The Bight Hon. the Secretary (.f Slate fnloniiil Uepartincnl. 3P iti In Sir i* Maitluiid's DisputclioftiUiJuly. Jl Ife- -:. ::' { y4-,' ) No. 2.'). COPY o( a Letter t'lum Mr. 11. W. Hay to Mr. Willis, J,' Cucum- stances, lie considers that you are entirely at liberty to leave the I'rovince when you please, without his Permission. I have, &c. Hon. J.W.Willis, kc. kr. (Signed) O. Hn.i.iF.n. Inclosure, No. -l: jjjp Vorli, Ii'ppcr (;iitia(lii, hill July 1828. J HAVE to request that yon will state to the Lieutenant (Jovernor, that as no Cause is assigned for my Removal from the Appointment which I had the Honour to receive from Ills Majesty, in the Warrant issued for that I'urpose under the Great Seal of the Province, and being aware of the Inexpediency of assigning any Reason on such Occasions, I hope, in the most respectful Manner, that I shall not be deemed obtrusive beyond the Necessity of the Case, in requirino- to be informed whether that Discharge or Removal is to be con- sidcred as a Penalty, or only as the requisite Means to create the Hiatus by which the Administration of Justice may be filled up, until my Opinion was over- ruled by hi'-^her Authority. In this Application, if there have been any seeming Occasion to think that in Circumstances .so peculiar as those in which I have been placed under, not only the Responsibilities of a Judge's Oath, but the Penalties to which he may be subjected when acting with the King's express Commands, I may apparently have indulged Feelings of too individual a Nature to be in consistency with an official Ciiaracter, I am iiersuaded His Majesty will make all due Allowance for the Delicacies and Difficulties of my Situation. It is impossible for me to think, after having so minutely and considerately assio-ned the Reasons as to the illegal State of the Court of King's Hcnch, at the Commencement of last Term, that the Warrant was issued with any penal Intention ; but notwithstanding it must be obvious, from the Terms ot the Instrument itself and particularly as the Practice of the British Constitution afforded another Course of Proceeding, that it might be suiiposed that I had incurred, not only Displeasure, but the Poiieiture of my Commission ; whereas the Circumstances of the Case very obviously point out, that without either Forfeiture or Penalty the Warrant might have been conceived by the Executive Council to have been the only Mode of obviating a great judicial Obstacle, to the Consequence of which no Per->ii can be more alive than I am. I have therefore presumed to hope, that his Excellency will be pleased to state whether my Discharge from Office is to be regarded by me as on account of Contumacy, or rendered necessary by those Forms of Proceeding, which in such Cases Government finds itself constrained to adopt. I am the more [lar- ticularly induced to make this Request, as his Excellency has been pleased to restrict the Receiver General tiom |)aying any Salary beyond the Date ol the Commission of Anioval. 1 lia\e, &c. &c. To Major Hillicr, kc. (Signed) John Wam'oi i: Willis. (. 'J+>5 ) -'''T Incloi.ure, No. .5. An Address of the Inhabitants of tlie Township of Brock, Upper Canada, to the Honourable John AViilpole Wiihs, &c. &c. Sir, , , Ai.inoi oil your late Arrival in tliis Provnice has prevented us troni (jlmiiniiig the honour of an Accpiaintance witii you, yet we had, on hearinji (if the Line of Conduct you iiad commenced, fondly hoped to have seen His Majesty's Court of King's IJench in this Province what it ought to be, the Seat of Rectitude and strict .Justice ; but our pleasing Prospects, to our Regret, seem to meet with, at le.ist, ii momentary Check, by what we conceive to be au unwarrantable and illegal Stretch of the Provincial Executive, though we are not without Hopes of meeting with a speedy Redress from our beloved Kill"*. In the meantime we believe you can rely with the utmost Confidence on having the good Wishes of the Canadian People for your Prosperity. Rut whatever may he the Sentiments of others, we feel we should be guilty ot Ingratitude, both towards our gracious King and to yourself, were we to cuii- ceal our honest Sentiments on this momentous Occasion. Tiien, Sir, be assured tiiat we consider you to have acted a fair, legal, and unbiassed Part in the Discharge of your Duty as One of His Majesty's Judges of the Court of Kmg'> Hench, and thereby merit the Approbation of all who are true Friends to tlu' British Constitution, and wish to see our high Courts in the Purity, Justice, and true Principles of British Freedom. Permit us to say, that as loyal Subjects of His Majesty King George the Fourth, we cannot help expressing our Desire that His Majesty will be graciously pleased to reinstate you in Otfice, with such Advancement as he may in His Wisdom sec fit to direct. ^ , . ,. , ,, Be pleased to present our Thanks to His Majesty for having listened at all Times to the reasonable Requests of his dutiful and loyal Subjects in Upper Canada. „. Sir, Your most obedient Servants, Jas. Beikie. Mathew Pie. Asa Wilson. Joel Wixon. Sylverius W. Sharrad. Townsend Wixon. William Stevens. David Patterson. Asa Wixon. William Smith. Robert Johnston. Brock, 9th. Tilly 1828. Silas B. York. Randal Wixon. Oliver Taylor. Webster Stevens. Anthony Pilkie. Sampson P. Harris. J. Rumerfield. Evens Feren. Samuel Bice. Moses C. Beatys. Dan' Williams. John M'Laughtin. W"" Parlament. The following Inhabitants of the Township of Uxbridge join in the foregoing Address: Amos Hilburn. Jesse Broun. Solomon Sly. John B. Planch. Tho* Helland. Tho' Arnold. loth July 1828. Panel Webb. Isaiah Webb. Alma Hewett. John Warner. John Warner, jun. John Hume. John Pearson. Elijah Collins. 3Q ( v'lG ) ■( No. 28. COPY of a Letter tioiu Mr. U. W. Hav to Mr. Wri.i.is. oj Uowiiiii),' Strcut, I si October 1H2S'. I AM directed by Secret.iry Sir George Murray to acknowledge tlie Receipt of the Letters which you have addressed to this Department, dated tlic '^(ith ol' August and Qiih Ultimo. Adverting to the peculiar Nature of the Questions which have been brought into Discussion, in tiie Correspondence between the Lieutenant (Jovcrnor of Upper Canada and yourself witii this Department, Sir (ieorge Murray has deemed it right to transmit the whole of the Documents connected with your Removal from Office as a .Judge of tiie Court of King's Ucncii of that I'lo- vince, to the Lord President of the Council ; and he has requested his Lordship to submit the whole Question to His Majesty in Council, for His Majesty's Decision. I am further directed to accpiaint yon, that Sir deorge Murray will not tail to use such Means as it may be in his Power to emplor for obtaining as early an Investigation of the Subject as the Practice of the Lords of the Privy Council, on Oc( ions of this Nature, will admit. I am, &c. .loiiii \v. Willis, Ksq. (Signed) R. W. Hay. No. 29. COPY of a Letter from Mr. Willis to the Secretary of State for the Colonial Department. gj^ ;).-,, I'.irk Stioet, liiitli, L'd October 1S28. Having this Day been apprised, in a Letter from Mr. Under Secretary May, " that owing to the peculiar Nature of llie Questions which have been broitgiit " into Discussion in the Correspondence between the Lieutenant (jovcrnor of " Upper Canada and myself witli the Colonial Department, the wliole of the " Documents connected with my Removal from Office as a .Judge oi'thc Court " of King's Hcncii of that Province have been transmitted to the Lord Pre- " sidcnt of the Council, that the whole of the Question may be submitted to " His Miijesty for His ftkjesty's Decision" — I have most respectliiily to request that I may be distinctly and particularly informed if any Correspondence between the Lieutenant (Jovernor of Upper Canada, other tlian that with which I have been ilivonred, has been so transmitted, as it is impossible that T can be eitiier morally or legally affected by any Document which I have not been jjublicly apprised of, and have not had an Opportunity of answering. I fiirther beg to be informed, if this Reference to His Majesty in Council is to be considered in the Nature of a legal Proceeding, in which it will be necessary, in this Stage of the 13iisiness, to have recourse to jjrofessional Assistance ; or as a Mode which is merely rendered necessary by the ordinary Process of official Business in Cases of tiiis Nature. I would also i-e>pectfiilly enquire if, in the Interim, I am to remain deprived of that Salary on tiie Faith of which I gave up my Protiission, and, at the Exjience of iipwartis of jf^i.OOO, went out with my Family, from whom I am now separated, to Upper Canada. In offering my best Thanks for the Assurance of your Endeavour to obtain an early Investigation of this Matter, I venture, under tlic very peculiar and most distressing Circumstances in which I am now placed, to ask when, so far as relates to His Majesty's Decision, it is likely to be terminated. I have hitherto confined myself merely to replying to the Cliarges that have been brought against me, witiiout adverting to those Comjilaints wiiicii, on my I'art, it may be hereafter necessary to lay before you. 1 have the Honour to remain, Sir, Your very obedient Servant, The Iti^lit Hon. the Secretary of Stale, (Signed) .JoHN" WaI.I-OI.I; Wll.l.ls. ('(iliiiiiil De|)in'liiu'nt. lav, idil ( 'ir, ) No. M). JlOllgllt rnor of ray l)a« th your at "I'lo- .ordsliij) ajcsty's I'r vv COPY Ola Letter trom Mr. K. \V. Hay to Mr. Wii.i.is. Sir, Ddwiiin;,' SrriMi, :i(l<)(iolKT Ic.'H. Siu (icorgc Murray lias had under his Consideration your Letter ot'tlie 'Jil of October, and has directed nio to return tlie following Answer, \'()ii will be t'urnislied by this Department with a complete Copy of every I'aper wliich has been transmitted to llie Lord President of the ("oinuii, of which ('()|)ies have not hitiierto reached you j but some Time nnist necessarily elapse belijre such Copies can be completed. You will in due Time receive, through the proper Ofticer, Notice of the Pro- ceedings whieli the Lords of the Privy Council may deem it light to adopt ; and their Lordships will, of course, receive such further Lxplanations as you may consiiler it nectssary or j)roper to otler. You will learn, by Ap])lication at the Council OHlce, in what ALinner you are to proceed in conducting yoiu' Defence before their Lordsliijjs. So long as you continue suspended from your Cttiee, you will not be entitled to any of the iMnolunients belonging to it. It is impossible that Sir (ieorge Murray should undertake to predict within what Time the Discussion of this Question before the Privy Council will he brouglit to a Termination. I have, &c. .lolin \v. AViliis. iCsq. (Signed) K. W. ll.xv. ( v.'49 ) If Part TV. U Ik COPY of a Letter thm Mr. Willis to the Secretary of State for the Colonial Department. JHf Rath, 5th l)ecfinber IH'.'H. I iiAvi: now the Honour to transmit for your especial Info'-mation, and also for tiie Purpose of being laid before the Lords of tiie Council, through the Intervention of your Department, the accompanying Letter of this Date, by which I trust I liii e not only fidly answered, but completely refuted and exposed the in)l()unded Allegations contained in the several Dispatches of the (ith ofJiuustiieyOth of.Iune, the (ith of July, and that marked "Separate," of the same Date, signed by I.ieutenant (iovernor Major General Sir 1*. Mait- land, and forwarded to me, by your Direction, on the l;Jth Ultimo. In my Letter I have referred to the inclosed Documents marked (!''.) and (G.), and the Paper^ thereto annexed. The first is a corrcrt Statement of the Facts respecting the Establishment of a Court of equitable .Jurisdiction in Upper Canada. The other is a minute Narrative of all the Occurrences that I am aware of, in anywise concerning me, which took place during my Uesidencc in that Province. You will at once perceive the I'ropriety of imnuHliately releasing me from that State of Degradation, AtHiction, and Misery in which \ have been so imjustly placed, and compelled to continue, ever since the !2()th of .lune ; for after the Explanation I have given, and which I am prepared to substantiate to the utmost, it will be manifest that I ought no longer to sufier, even though the Matter be referred to the Lords of the Council, the Courts of Law, or the Imperial Parliament. I have the ilonom- to be. Sir, Your very obedient Servant, The Kt.Hcin. the Secretary of Slato, (Signed) .loHN VVaLI'OI.E WiLLIS. Colonial Depiirtnit'iit. REPLY to the Charges contained in tiie Dispatches of Major Genenil Sir Peukgrink Maitland, of the Dates of tlie (itli .June, '.itith June, and Cth July. gjj. Hatli, :>ili December I82H. Having replied at some Length, on the 2Mh of September, to the Docu- ments transmitted to me by your Direction on the 2Sth of August and the 15th of September, containing such of the Charges made against me by the Provincial Government uf Upper Canada with which you then deemed it expedient I should be furnished, I have now the Honour to submit to your Notice an Answer to all such other Accusations as I am informed have already been laid before tlie Lords of His Majesty's Privy Council, and are now sent to me for my Observations. These Charges are contained in certain Dispatches from Lieutenant Governor Major General Sir Peregrine Maitland, dated respectively the 6th of June, the 26th of .June, the 6th of July, and another also of the 6th of July, marked " Separate." It would certainly have been much more consonant with my Feelings, hud I been permitted to see and answer the whole of the Charges urged against me at once ; or, that not being convenient, to have been furnished with Copies of these latter Accusations, before it was considered expedient to submit them to a II fhc \ • ill ^ 'i->o ) ogt'tluv witli till' ('hiiijfcs to till- l.iinis ol the ('(iiincil, at the samu 'rinie, Ui wliitli i luul prcvioiiHly ri'plii'J. I aiiswcriil tliu prt'cciliiig C'liar>^eH, suppoNing tliey were all tiial I '-.aR expected to reply to. I answered tliem f'liily ami without Reserve, under the express Understatidiiig tiiat you would exercise your Judgment upon the wliolo Question, and decide ut once. I expressed to you my Regret, in my Letter of the 7th of October (No. *J.), that my C'as ; was to experience indefinite Delay, by being unexpectedly referred to the I'rivy Council, before whom the answereil as well as the inian- s..'ered C'iiarges haii been laid. I can, however. Sir, appreciate the Motives which, as it seems to me, have actuated you in thus proceeiJing in » Manner, at first Sight, perhaps, somewhat disingenu-ms. It might well be deemed a Questi'^n, whether Accusations of so virulent and personal a Nature should be allowed to go forth, tiirough the Medium of (iovernnu'iit, against an Ollicer of His Majesty; or, in kindness to the Cha- racter of the IVovineial (iovennneni, be witlilield altogether. And I nniKt now beg leave to offer my best Thanks for the Consideration you iiave evinced towards me, in taking the Advice of His Majesty's I'rivy Council, and thereby procuring me the Opjwrtunity of replying to Documents which, from their private Nature, I could not otherwise have ex|)ecte'' ;.o receive ; and 1 must therefore have continued to remain under the Imputation of Calumnies the most imfounded and malicious that were ever, perhaps, sent Home against an Oflicer of the Crown. I consiiler the 'I'rai'smission of the " Separate " Dispatch as a Mark of special J'avour, and as such I beg to acknowledge it. I consider it also as the best Kxpression of yom- full Determination to do ample Justice to the Accuser, us well as the Accused. I shall nov proceed to comment upou the Dispatches and their Inclosurcs, in the Order of their Dates; premising, however, that should I be betrayed into any Asperity of Language or Kxhibition of reeling,, which I shall endea- vour as mucl) as jiossible to prevent, 1. must be attributed to the Indignation which any hone '.-minded Man nuist exjierience on reading a Series of personal Invectives, such as rarely, 1 should hope, is received from any Gentleman i'l the Service of His Majesty. If a Judge of Ui)per Canada can or ought to be removed under any Circiun- stances, otherwise than through the Intervention of the Legislature, such Removal can only be eflected according to the Act of 2'2 Geo. 3. c. 75., by wi.ifh the (jovernor and Council of any Colony is empowered to remove Officers for Misconduct. Admitting, however, for the Sake of Argument, the Power of removing a Judge apjjointed by His Majesty to be vested otlierwise than in the Legis- lature, that Power is clearly by the above Act given only to the Governor and Council. Lieutenant Goveiiior Maitland therefore informs His Majesty's Govern- ment that he shall consult his v.wuncil as to my Conduct, and take their Advicp ui)on it. The Report made i)y the Kxecutive Council of Upper Canada on the 27th of June shews the Maimer in which such Consultation was conducted. It will naturallv be expected, that in laying before the Executive Council the Reports of the Crown Lawyers, and such other Reports and Charges as contained, in the Opinion of the Lieutenant Governor, Matter of grave Consi- deration aflfecting my Character as a Public OfKcer, that resi)ectful Notice at least should be taken by the Council of su';h Communications as the Lieutenant Governor had been pleased to submit for their Opinion. It will be expected that the Council woidd maturely consider whatever might be imputed to me of IJlame, when by the Lieutenant Governor's Desire they had my Con.luct in Keview before them, and did actually come to the Conclusion that I ought to be removed from my Office. The Dispatches, therefore, of the (ith of June and the '26th of June, or the Sul.'stance of them, and the Charges therein contauied, will be noticed, if not commented upon, in any llei)ori the C^ouncil may have furnished. The "% "^ 27tli Till- I)is|)at( lu's t.l' the liili „j ,1,111,. ,„|,| III,. ..'(iih .tlJiMU- m-n< uritti n .I.Hr.l .It U-ast, [wlhtc till' Ui"|i(.rt of tlir Executive CoimiMi was or (diilil lia\. I„rii inailt'i yt't, on Inspection, it will U- I'oiiiul that no Notic;! whatoMT is taken ■«( any single Ciiaij,'c made \>y tlio l.ieiiti-nant (iovt-riioi a^'ainst nu- in liu-sf I'wo Dispatrlies, Till' Question then arises, were those Dispatch-s, or the Charges contnineil therein, iaiil l)y the Lientenant 'Governor, to ., - with \v.i oilier Charires hefbre theCoiincil or not.' IC they were, whyh . j not the V.xenitiw Couneii taken some Notice of them in their Report, however small that Xuticv r-iight hv? Did they by not iloinjr so intend any Disrespect to the I,ieiitenaiit (ioveriK.r ; or ilitl they consider the Chuiges sudi as they could not legally take into their Consideration? 'i'hey (M not think them available lor the J'lirposes of Accu- sation, or it is presumed they would not have tailed to put tliein into the Scale against me. when the Ualaiice was so eipiallv poisid that if was at last turned by " the Council being left to intcr[ e i'>r themselves the KHect of my '•judicial Opinion." Must we assume, Kieii, the other Alternative, that these Charges contained in the Dispatches w. 'wt laid belbre the Kx.culive. ( :ouncil ? Now supposing, therefore, I could he removetl even by the Go . eriior W Council, I presume I could be remo' ed only for such Reasons as '.lie Council should think sufficient to warrant the Governor in such an Act. Hut the Executive Council cither have rejected the Jleasons flowing from the Charges contained in these Dispatclies, a inapplicable or insullicient (supposing did they were submitted ».) their Consiileration). or the Lieutenant ''■)vernor not lay them before the Council for tlie same lieason. Either Way, therefijie, these Charges are not alleged in the only Mode they can be brought against me, as aftbriling any (iround' for my Amoval. They eiiiier uvre submitted to the Council, or they tare >ml. Hut li.e Council do not notice them in the slightest Degree. ion .■' Tlie Separate" the Birth of the sligl How then, Sir, f'.-. they or can they affect tlit^Questiit:/ of i.. A"ioti (Public) Dispatch of the Cth ofJuly, and its illegitimate Brotl e* li,. " S Dis,)atcli of the same Date, came into Life subsequent Report of the Executive Council. Lieutenant Governor Maitland announces in the latter Doc ment thv .iior- niatlon, that " Mr. Willis was removed on the 2fith oiMune," with other curious Ciicun\staii ,es hereafter to be noticed. I presume his Excellency does not intend to convey iiic Idea that these 'iwo latter Dispatches, written, at least dated, s'.iljsequent to my Amotion, and following the Report of the Execuive Council, had any letrospei live Effect upon the Judgment of the Executive Coiiiiciliors in making their Iteport. — I mean that the Disj)atches ol' tlie fith of July, or the Charges therein made, could not have had any Effect upon the Report made on the '27tli of.Fuiie, or ujiirt'm,, on my Amotion, which was accomplished on the i>fith. In tlie Opinion of the Executive Council, therefore, there appeared sulKcieiit Grounds on the 27th of June to recommend my Amotion on the 'ifJtli of June, iiulepen- dently of the Charges which were to be contained in the Two Disj)at"he.s of the Gth of July. Upon the whole, then, it must be evident that the (Jroiiiids and Reasons, if there be any, fbr my Amoval. must be sought elsewhere than from any or : '1 of the above-named Dispatches of Sir I'eregriiie Maitland. They are to be found, such as they are, in the Report of the Executive Council, (made the Day after the Amotion look place,) as is expressly stated in the Separate Dispatch. To this egregious iieport 1 have fully replied. It will therefore be now enquired, to what Purpose do tlie Charges in the Dispatches tend, my Amoval being effected witlioiit them ? The first, dated the 0th of June, is to prepare His Majesty's Government i-.r a Measure which I have Reason to know was resolved upo., as soon as I >> t Foot in the Province j and the Three following were manufacture 1 in order to vilify and degrade to the utmost a Man who, they were conscious, had been illegally and unjustly dealt with — that so, when thus put out oi' the Pale of Sympatliy and Compassion on account of his alleged Misconduct, he ;night appear to have no more than his Deserts, u.se him never so vilely. \h. me liLMiJ iln 3 »!* "U." I* I n 1 ill?. 1 I. 1 e ( •J.rJ ) I mi.vl.t tlieiefore rest contont witlioul oiio fiiitlier Syllable ot.histilicatu.n , 1 ini.-iit leave it to the good Sense a.ul geiiilenunly Feeliiitr ol youiselt, or anv Me-uber of His Maesty's Government, to judge of the mean, persona, and e.rj„,st facto Scurrdities to which Sir Peregrine Maithmd has not scrupled to ""neei bomui, however, in Justice to my Friends, the King's Government and my own Character, to wade through the Mire of th.,se Dispatches, at wliatever Kxnence of Patience and Temper ; periectly assured at the same Time, that their Substance and Tone have not escaped your Notice or wTt.rJ'Srd to Lieutenant 'Jovernor Maitland's Dispatch of thefithof June, the Docun.ents I have already transmitted, and what is said m the accom- panying Statement marked (F.), respecting the Transmission ot tiie Chancery Docunrents, will at once shew how far I was inclined improper ij to adop^t " any unusual Course of Communication with Hir, Majesty s Governmcn., and will fully account for the Manner in which I conveyol to Lieutenant Clovernor Maitland my Sentiments respecting what I believe to be he necessary Constitution of the Court cf King's Bench in Upper Canada. W hat " more natural or considerate Course" I could have adopted I have yet to learn. I ;!pplied for Information to his Excellency'.; Secretary, and beggial to • be corrected if 1 had committed any Sins of Informality. It matters not what Causes existed for granting Leave ot Absence to Cliiel lustice Campbell. \i he wished for it, no was as free to procure it alter One Yi'av as at the ImuI of Seventeen Years, There needs no Lxcuse nor Aiiology "'ikit'sucif Leave, under aw^/ Circumstances, ought to have been granted, not only to him, but to every other Offucr absenting himself .rom the 1 rovince, I humbly submit, according to the Statutes for that Purpose ; and .ovision made for the due Performance of the Duties of the Officer during his Absence. lieutenant Governor Maitlamt's " Intention to consult the Lxecutive " Council before he adopted any Measure concerning me" does not appear to liave been subsequently remembered or acted upon ; for without waiting for their Report, which was not and could not have been made before the 27th o June, he removes me by a Commission dated, signed, sealeil, and registered on the 2Gtli of June. , , , ,, i ;, , 1 a.n-ee with his Excellency, that " it is quite clear that the V^o^Ac uvirhl ml " to "have been left without the Means of having Justice administered j therefore I submit that Provision should have been made according to tiie Statute for the Discharge of the Duties of the Chief .lustice during his Absence and that it was highly t'ulpable on the Part of the Executive Government not to make such lawful Provision. , , „ i / i. i,.iv wiflmnt It is not ...lite so clear, however, " that the People s ) itiy Conduct the Subject of Discussion, 1 see not any Reason to be ashamed oi alarmed. The next best Thing to doing Justice is to satisfy the People tha* Justice lias been done ; and if this were an unusual Thing in the Colony, no doubt it would be talked of. My Conduct during the Spring Assizes, and the unfortunate Criminal Tro- ceedings which then took place, has already been mad(^ tlie Suijject of a •' Separate " Statement. Two Newspapers, generally repiesented to be in the Interest of the Government of Upper Canada, I believe, attributed most improper Motives to me on that Occasion. The Montreal (Jazctte stated, " that political Differences were the probable Cause of the late Proceedings ;" and the Montreal Courant said, " that Judge Willis seemed decidedly in " favour of the Editor of the Freeman." My political Feelings, however, will be best gathered from the following Passage of my Charge, on that Occasion, to the Jury, in the Trial for Murder. It was the first Charge of any Importance I ever delivered. " A Stranger in your Province, and uninfluenced (as 1 hope I always shall " be) by any personal, j)arty, or political Feeling, I can have no otlier Desire " than that the Ends of Justice should be completely answered." I have already in my Statement, in reply to that of Mr. Attorney General Robinson respecting what occurred at the Assizes in April last, had Occasion to allude to the Tar and Feather Outrage. I have likewise done so in the " Narrative of Occurences in Upper Canada," marked (G.), herewith trans- mitted, and to whicii, with the Papers thereto appended, I take leave to call your particular Attention. When, in this Tar anil Feather Case, I delivered the Judgment — •' C-jpy oi'which is annexed to Lieutenant Governor Maitland's Dis- patch of the Cth June, and it is also correctly reporteil in the Observe . Newspaper of the 12th of May, which, as it likewise contains an accurate Report of a subse- quent and important Disc- ssiun arising out of that Case, I have annexed to the Narrative (G.) — I alluded to the calumnious Reports that had been industriously published and circulated respecting my Conduct at the Assizes. This Tar and Feather Case, from its Atrocity, and the Offenders remaining so long unpunished, excited most intense Interest throughout the Province. In the Conclusion of my Judgment, I said, " That I had lewed that Case, as " I hoped I shoidd do every other that came before me, solely with reference " to its intrinsic Merits. Totally devoid of all party or political Feeling, it " had been, and ever would be, my earnest Desire to render to every one " impartial Justice. My Conduct, however, hail not been so construed ; and " the Slanderers and Revilers, like the venomous Reptile of the Country, " although fortunately lieedless of the Rattle by which they may be traced, " had of late put forth their poisoned Tongues. But "Justum et leiiaicm," &c. The total Want of Foundation in the Assertion that I associated myself with any Party, or with any Persons, save as mentioned in the Narrative marked (G.), which is annexed, will fully appear by that Document. Excepting my Ir.imacy with Mr. (ialt and Dr. Dunlop, I associated myself quite as much, or more perhaps, with the Lieutenant Governor and his Officers, as any other Persons in liie Province. How respectable that Party was it is not necessary for me to say. If, on my coming into the Province, an Expectation were entertained, by the great Body of the People, that Justice wouiu oe lendered after a Fashion somewhat new to them — that I should not take my Law from the Officers of the Court, nor forbear to declare my Opinion, when formed, to the best of my Knowledge — that I would not permit the Bench to be insulted, even by His Majesty's Attorney General — and that Causes advocated by him might some- times fail of Success ; — if there were an Idea gone abroad that an English Judge might think diflerently on many Points from his Brethren on the Bench in Upper Canada, and would give such Reasons as he was able for so dilfL-ring — and if all this did excite "Attacks from the vilest Quarters of the grossest kind " against those who were associated with him in the Administration of Justice," as well as against himself — is certainly not a Matter to be wondered at, " in " a Province where the Press has been permitted to attain to a Degree of " Licentiousness not easily conceived." * * See Mr. Alluriifv Cieneriil Itobiiison's LeUer iind Statement as to his f. induct during the Vssizes. 3i> «' The ( '2.0i ) " The Attacks," says Lieutenant Governor Maitland, " wliicli, springing " from Mr. Willis's Comments and Proceedings in Courts of Justice." (that is, for my Endeavour honestly to administer Justice,) " form the pnncipan opics " of tiic most contemptible Newspapers, cannot, without a Forfeiture of " Self-respect, be repelled through the Medium of the Pub he Press, by the " Gentlemen against whom they are directed." The Iruth of this I fully admit Therefore it was, that when the libellous Comments on my Judicial Conduct appeared in the Gore Gazette of May lyth, (which I have appended to the Narrative (G.), a Newspaper admitted by the Lieutenunt Governor himself to be so far at least patronized b) the Local Government as to be taken in at their Office ;— therefore, I say, it was that I sent that libellous Paper, edited by Captain and Adjutant Gurnett ol the Gore Mihtia, to nis Excellency, and called his Attention to its Contents j - therefore it was that, in the Correspondence on this Subject, I stated, in my Letter of the dOth of May, addressed to his Excellency's Private Secretary, " liiat my Object in •' sending that Pape;- was to .haw the Attention of the Lieutenant Governor " to the singular Fact of u.i ( )tHcer, wider the Cuntroul (f Government, being " the Medium of derooatorv e;omiiK'nt on one of the King's Judges in the " solemn Execution of his" Duty." Therefore it was that 1 then added, " that it w^is tor the F.xeciilive (iovennnent to determine whether any and " what Proceedini's should bo instituted in a Case so contrary to Decorum, " and to the Spirit and Subordination of British Government;" and therefore it is that " 1 rely, with Lieutenant Governor Maitland, that the King's " Government will see and feel the Justice oi examining into the Foundations " of such Attacks, and the Necessity of saving me from the painful Situation " of having to sustain myself against unfounded Imjiutations, by whomsoever " (even should it be iiis Excellency himself) suggested and countenanced, " when actinf' in an independent and firm Discharge of my Public Duty." I have also appended to the Narrative (G.) the Observer Newspaper of the 5th of May, containing Extracts from the Montreal Papers I have men- tioned ; and the Freeman of the 8tli ol May on the same Subject. I have also annexed an anonymous P.acard, the Kingston Chronicle of the '28th of June, the Gore Gazette of tiie .0th of July, the Bathinst Independent Examiner of the -20th of August, and the Loyalist (edited by the King's Printer) of the '2d August, whicli abound with very unwarrantable Rcmaiks, in my Opinion, upon my Conduct. ,. ., ■ c .\ -n i I cannot avoid noticing tiie very extraordinary Similarity of the Phraseology Style, and Subject of these Remarks, with those of the official Papers which have been transmitted to you from Upper Canada. That " I have received •• from Lieutenant (iovernor Maitland, and from every Member of his Govern- " ment, even, Justice," as he is pleased to assert, I cannot in anywise admit. The Correctness also of tl;e Assertion that 1 had never been attacked when I delivered my Judgment in the Case of the Tar and 1-eather Outrage, wdl appear, not only from what 1 have already said both here and in my Narrative (G.), but by the Number of the Observer Newspaper of the 5th of May thereto annexed ; a Paper, I believe, taken at the Government House, and the Editor of which, I understand, enjoys the Patronage of the Government. The Motives and Circumstances which led me to prepare for Publication a Work on the Jurisprudence of Upper Canada, may be seen by the Narrative (G.) and by tiie Manuscript itself thereto appended. ,, , xt This intended Publication was announced by Advertisement in all the News- papers published at York. Upper Canada, and also in the Albion or British Colonial Journal, published at New York, and taken in by the Lieutenant Governor himself, as well as by very many others in the Canadas and other British Settlements. This is what is styled th.T " Foreign Paper in the Dis- patch. ■' The significant and unpromising Motto," as it is called, was painted tinder my Coat of Arms on my Carriage before I left England. Any other i>fotto would probably have been erpially obnoxious to illiterate Ooservation. I can now more easily enter into the Feelings of Alarm and Horror which so " unpromising a Motto" would create in Minds that shuddered at the opening of a Statute Book so antiquated as the 34 Geo. 3. c. 2. ; and estimate the Fear that any Abatement in the Severities of the Criminal Law of Upper Canada •night, bv Investigation, after the Example of llie Mother Country, take place. ■f ( Q5r< ) It is not surprising that his Excellency should ihcml the Chance of an Act similar to the Alien Bill being necessary to secure the Property, protect the Liberty, and enforce the Laws of the Province; or that the wretched Prisoners committed to the Gaols of Upper Canada should " hope for a hotter State of " Things," when a Second Gaol Delivery in the Course of the Year should allow them to be tried before they had altogether been rotted with Disease in the Prisons of Upper Canada ; though some Inconvenience might thereby accrue to Three Judges, who have at present little to do ; and to the Attorney and Solicitor General, who in such Business do little. The Lieutenant Governor goes on to say, " I liavc been len \ears in this «' Government, and I have received no Representations either against the " Laws or the Manner in which they have been administered, and I must " conclude that the People are content with both." I can only say, that I had not taken my Seat on the Criminal Bench len Minutes before a very serious Complaint of Neglect in the Admimstratioii of the I iws was made before me. The Kejiort of the Select ('ominiltee of the Bvitis). House of Commons on the Civil Government of Caiuula, dated 22d Ju'y 1828, p. 7, states,--'' Your Committee, however, are desirous of " directing the Attention of Government to the Sedilnm Act, should it not be " found to have expired ; the Repeal of whicli appears to have lon.!i been an '• Object of the Efforts of the House of Assembly of Upp r Canaila. After tliis QiiotjUion his Excellency's Observation n Is no Comment, i would, however, also refer to the Report of the Houst .,. Assembly ol Upper Canada on the Administration of the Crimii-' Law, w nch I have already transmitted ; and to tiie Proceedings of that House in the Case of Boullon V Randall which are recorded in the Jomnal of the last Session. It is unnecessary to adduce other numerous Instances which exist to prove the VL'iy reverse of what is stated in Lieutenant Governor Maitlaiul s Dispatch. " Contentment," says the Lieutenant Governor, " is imi)ortaiit to tiie Public Peace " Having thus disposed of this important State Paper of tlie (Jlh of June, which abundantly shows what Encouragement there was to make any extra official Comnmniration to the Local Government of Upper Canada, 1 now proceed to that of the '2Gih June, the Day on which the Comnnssion was "dated, signed, sealc'l, and registered, amoving ,ne from the Olhce of Judge, to whicii His Majesty, -d not the Lieutenant Governor, m the hrst Instance, (as in tiie Case of Messrs Sherwooil, Macauiay, and Haggerman,) was graciously nleased to appoint me. I must in tl.c first place, refer you, not only to my former Matement respecting theProceeJino-sattheAssizes,butalsototheaccompanyingSlatement(markedl'.), with refe.ence to the Establishment of an equitable Jurisdiction in Lpper Canad.; and particularly to the Statement therein contained with regard to myl'^e/vi'.w with the Lieutenant Governor on the 8th of May, a»'l my Reciues on that Occasion, that he would transmit my Application for t.ie Chief Jusi.ruship, until a Court of Equity should be erected. Mv first Complaint, as will be seen by the ofhcial Letters, respecting the Hto'rney General Robinson's Conduct, was on the Vith of April ; my Second on the 14th of April; but it was not till after tiic Application 1 had made on the 8th of Mav, for the temporary Appointment to the Chief Justiceslnp, that any Explanation was offered by Mr. Robinson of his Conduct at the Assizes. And even when it was made to the Provincial Government, I was not considered worthy of being informed of it ; altlioug. I ^^^^ "> t '"'^'t'';;- tion of one of the King's Judges, complaining of an Ofhcer of my Com t. a anxious to have an important Question respecting tlie Admui.stration of the CHmll Law duly ascertained and settled ;- a Point on w nch >I'. AUorney General Robinson stated the Practice differently m the Course of I«o oi Three Days; and which, while undetermined, must necessarily be productise "^'E:v"4'Ernto"b:i-ieve, and with. I think, far better Means of judging tha". the Lieutenant Governor, that ^X Conduct during the A?';<;^ ;^|;; "/f only very generally approved of, but that that of Mr. A torney Geneial Robm- ^oVwasls^gere-al'ly L^ndemned. For how, I would ask, could the L.e«t I !! ■ ( -250 ) Governor, who, ever sinre tlio iJCtli of Marcli, with the Exception of a very »ew Days, constantly resided at his Cottage near Niagara, a Distance of 40 Miles, possess the same Means of Observation as a Person residing in the Capital, and one, moreover, wlio had been an Actor in the Business? except, indeed, through that Medium which seems to have magnified to horrible Dimensions, while it distorted all Persons and Actions whose Figures ani liy tlii' same I'tTxni I'oi tlic like Purpose, and infbimctl, that Mr. Slierwocxl lias finnislR'il a "opy ot liis Judgment ; aiul I, ot'coiirsf, followed his Kxample in acceding to ilie Ueriuest. I was also applied to thr a ('opy of my judicial Opinion respecting the Con- stitution of the Court oi' King's Hench the Day after I iiad dehvered it, wliich I immediately gave; persuaded it as my Opinion on so important a Subject had l>een publicly given, it could not go f()rth in I'rint too accurately. Had my Mind been constructed accortling tn the " bean ideal " of Lieu- tenant (iovernor Maitland's Judges, I ought, as he asserts, " to have rejoiced " at tinding that my Itiother Judge did not consider it incompetent for him " to hold an illegal Court, or |)rocee(l, without Warrant of Law, to decide upon Men's Lives and Properties. I cannot conceive a tiiorc Saltinic Joi/, than to see Men rushing headlong into Sin and Danger, and to receive Pleasure from the Sight. " Mr. Willis," says Lieutenant (iovernor iMaitland, " av/v irimnvd mi " t/ic 'it)l/t (jf'Jidte ," and the Report reconnnending that llemoval, and on which he says he acted, was not, and coulil not have been made, as in Candour he ought to have added, imtil the 'jyth of June ! ! Why I was removed, or why my Removal took place at the particular Period when Writs were issued for the General Klection, must rest solely with Lieut. Governor Maitland to explain. I expressly protested against the Legality of the Measure ; and I recpiested Leave of Absence. I also asked tor my Pay, the Warrants for which had been withheld. 1 wished to proceed forthwith to Kngland ; and took some I'ains to avoid witnessing Lxpressions of ])opidar Indignation, which so extraordmary .; Measure as my Removal called forth. 1 have in my Reply to the Report of tiie Executive Council, and in uw Memorial to His iNLijesty in Council, (idly shewn that my .'\moval from Ollie'e was not an Alt of Necessity, in onler to allow of another .Aijpointment. It must also be evident from those Documents, that tlie .Vmoval itself was " an " Act " not oidy " of the greatest ('ruelty," but also of the utmost Injustice, Illegality, and Oppression. All I know of Dr. or Mr. Hr.ldwin, or of any other Person in Upper Canada, I have stated in the Narrative ((i). From what I do know of Dr. Haldwin and his Family, I must always sincerely regret tliiit I have not known more. I have also stated in my Narrative by what Desciiption of Persons the Address w.as presented to n'le. A Copy of the Haniibill whicii his Kxcellency inclosed to you is now in my Possession. 'J'firrc or moie of those who signed it are Mend)ers of the Provincial Parliament. " That Accounts were circulated, fid! ol' tiie most shamefid Falsehoods," against me, I readily admit. One of such printed Accounts, circulated, as I am intbrmed, by tlie Raililf of the L'nder Sherifi; i< annexed to the >s'arra- tive(G.) In the Elections, as will be seen by this Narrative (G), 1 took no Part what- ever. I lel't York, as was well known, on ThiuT.day the lUth of .July (by Mistake I dated a Note to Mr. Robinson on the Morning of tiiat Day as the lltli, and received his Rejdy. properly dated, the lOtli).' Wiien I embarked, the Election for the Town of York was going forwartl. It was my Intention to have gone across the Lake the ])revious Day, but from some unexplained Cause the Steam Boat did not ply as usual. It IS not a little singular to perceive, that this " Separate" Dispatch, dated the 6th of July, foretells that Mr. Robinson was returned on the Ilth of that Month. I did not learn the Result of this Election till after my Arrival in this ("ountry. My Amotion was considered so incredible, that I was asked for a Copy of the Instrument, which, as I could conceive no |H)>sible Reason to the contrar^■, I directed to be furnished, as I have stated in the Narrative (G). I annex to the Narrative also Two Newspapers, containing an Account of the Meeting to which his Excellency alludes, ami the subsequent ProceediniTs. It is all I know of the Matter, except iiaving received Copies of the Petition and Address, after the Meeting was over. 15y the ofticiai Copy transmitted froin the Colonial Department, the Petition then agreed to appears to have been signed bv l.75t) Persons in the Home District. In m^ f' Mi' I ■■ j ' i i t'. ( ^0* , In ri'gaid to the AiltlreM, it mu»t \)<' iiii .ihureil that 1 leceived it lui an Iiuliviiliiul, ami not as a Judge of the Pu-vince. I had thun been ignominiously, illegally, and t lli/ deprived of niv OfKcc. Lady Mary Willis, as appears by the Narrative I \.i). ",a» more than Once grossly insulted in the Public Street, and that, too, by Persons in Connection with the Officers of Government. I was about to leove her, my infant Child, and my Sister, without Protection in a strange Land, and to proceed to Kngland in tli'' Hope of obtaining speedily that Justice which is yet delayed. " 'I'o have refused this Address " (to use the Language of F.ieiitenant (lovernor Maitland, in his Speech to the House of Asii"mbly on the l')cct to a Tyranny iieyoml Endurance." I will exhibit belore you, as a Sort of Summaiy to this long, and, 1 fear, tedious Letter, a melancholy >ei almost ludicrous View of tlio Absurdities into which, by the IJIimliiess of their .Anger, the Executive of Upper Canada liave been betrayed. As if the .\rch-si)iril of Error and Confusion had wholly possessed them, there is not an Assertion made, nor a Measure adopted, in the solemn Farce they have been enacting, that iloes not carry with it its own Refutation. The first Recogni/ance in order to the Attack upon me is made by the Attorney General. He savs, '• that the Crown Lawyers alone have the Right of coiuluctiiig all (!riminal Prosecutions." Yet he denies that it is his Rusiness to prosecute flagrant Crimes that are committed at his very Door. On another Occasion, while admitting that the Officers of the Crown ought to prosecute OHeiiders, it is thought thai, it will greatly conduce to the Satis- fiiction of I'ublic Opinion, and the Strictness of Justice, if the Attorney and Solicitor General should first have the Benefit of defeiuling the Wrong-doers in atiy Civil Action brought against them for Damages! The Attorney General deems me unfit to sit upon the Bench, because I could not unilerstand the Nature of a Person's Application to the Court until I had heard what he had to say, and, " together with" the Lieutenant Governor, loudly blames me f()r the Proceedings which ensued in consequence of that Application j yet with the most consistent Ingenuousness it is ailmitted, " that perhaps those Proceedings were inevitable !" I went IBH i>*- 1 went [ i> ) I wi'iil mil III * 'MiKiila .1^ Miiiiily .lii'l;.';.' fli'ct, "Niu'iliiii; my ('iii)iiiii>.^ii)ii li> I'dIIow I J, NS'lii'ii it was iiiiiioiiiiL'oii tlial bcturc my A|)|)i>;iiiiih'IiI rniiltl take pliici' n Hill must imss tlic I'roviiiciul Lt'LcisIatiirc, my niHaiipoiiitmciit, an'onliiijj to Sir v. Maitlaiid, was soimtrai^i'oiis, tliiit I sot mvscll' to pri'Vi-iil tlif Mrasiiio Irom liiiiig oariii'il ; /.c. bi'rijx wcai\ i^l" Delay, I loul^ tin- uu)^\ clii'iiii:!! Means ol niakinj!; tin; Delay licrniamnt ! U lit'ii iiis l'..\ ' Coiiiliict was generally reprobated and censured ! ! I'tritm lioiuin? I went out to Canada, and commenced my Work on the Jniisprudeiiceof tiie Province, " incUom spcraiis." His Kxcellency, as it appears, took ctlectual Care that " the Hope wliicli comes to all came not to me." Tlie Kxecc Kc Council administered the Oath of Office to me, by wliicli I w.is bound t() do Justice according to Law. Having refused to hold the Court, and |iertiniii Acts contrary to the Laws (as bad been the I'ractice), the Council " ivgri^t " exceedingly" that 1 did not think proper " to go on in the usual Course." I was invited to the Speaker's Dinner. Tlie (iovernment (Jlliceis do not think it fashionable to go, for there " tluy drink such Toasts." In all the Simitlicity of , Appetite I attendeil ; and on duly reporting myself the next Day to the Lieutenant Governor's Secretary, I was given to under,-.tand, that to drink the King's Health with Four Times Four Three several riiius, to sing " God save the King" as often in <'mI1 Canadian Chorus, His Majesty's .Arms being in Transparency at botii Ends of the Room, was no Kllhsion of Loyalty on the Part i.f tlie Speaker and the Members of the Ash mbly present, but merely a Compliment to mc ! The Lieutenant Governor complains that the Judges are vilitkd by the Press, vhidi ought to be punished. I make a similar Complaint; and he thinks the Press has done very properly, and it is said has promoted the DeliiKpient. The Lieutenant (iovernor says, I kept undignified and improper Comp ny,that is, improper for a Jui re. There is no Man's House in tiie Province at which I'more frequently visited than that of his Kxcellency himself; therefore a most unfounded C'viige. The Council sav, ' a .ludge is not answerable for the Effect of his Opinions ; refusing, therefore, to allow my Judicial Opinion upon the Constitution ol" the Court to have any EH'ect upon their Minds, " not deeming it satisfactory," (and no W'onder, because, as they say, " tliey were left to interpret it for tliem- .. .j^,].-,-.; "> thev recoiv.'.iie!!!! niv Amoval ' ' 'J'luis practicallv illustrating the Axiom tliev !>■ * aid down. 3-X Lieutenant iiMHi',- fflll| ( 'i(J>'' ) Lieutenant Govomoi Maitlaiul su).;, ■■ tor the Kcasons stated in the llopmt " of tile Council Mr. Vvllijs lias been removed. "' In anotlier Dispatch, " Mr. Willis was removed on the 'Jfitli of June." Creditc postcri. 'I'hc Report of the Council was made on tl:c Txi-cnh/scvcntli of June. I gave it as my decided Opinion, that in the Absence of One Judge, the Bench was inetficlent. To remove all Doubt on the Subject, the Lieutenant (iovernor sends away Two. it is lamented that the Excitement naturally expected in consctpience of the Delivery of my Judicial Opinion would jjrohably be increased, as the Writs for the Elections were then issued. To eusiu-e so lii^lilj/ desirahk an Event, the Lieutenant Governor removes me in the midst of the Canvass (or the Election for York ! ! ! In his Progress through the Province, the Lieutenant (iovernor receiv(!d certain laudatory Addresses ; and on be-ng called in (juestion somewhat sharply by the House of Assembly for the ReHections on that Hoi!/ vhich these Addresses contained, he asserts, as he was bound to do, his undoubted Right to receive suf 'i Marks of the People's Esteem and Apjirobation, as distinct Proofs oi'goud Feeing in both Parlies. Yet liis Excellency hints, that I com- mitted sometliing only short of Treason, by following j)recisely his own ICxaiuple, with this Ditterence, that his Excellency received the Addresses in his ofiicial Capacity, while he hau used all the Power he jjossessed to reduce me to the State of a private Individual. The Attorney General writes to know if I wish the Printer of the Gore Gazette to oe prosecuted tor a Libel upon n\e. I request, liiat not the Printer only, but Vlie Auiiior also, of the Libels may be punished. The Attorney (ieneral replies that he does not know the Author. The Lieutenant Governor, possessing tiie extraordinary Faculty of Vaticination, foresees, on the '26l\\ ol' June, the precise Advice of which his Coiuicil wouhl be delivered on the 'i/th, and acts accordingly. As Time grows older, the Spirit of Prophecy waxes stronger '.vith his l^xcellency ; for in his Dispatch of the (ith of July, he announces the Return of the Attorney (leneral f()r the Town of York on the 11th by .a Majority of Seventeen ; and though it was not men- tioned, lest it might not be credited, no doubt the Circumstance of the Steam not sailing on the l)tii of July was as plainly borne in upon his Mind. My Amoval was considered, not as an Act of Cruelty or Punishment, as I ventiaed to assert, but oi' E.rp't/icncu alone. In I'roof of this, my Pay has been si()p])ed since the Day of my illegal Amotion !! I lia\e now, Sir, gone through, seriatim, the Charges contanuil in the Dis- patches of Lieutenant (iovernor Major (ieneral Sir Peregrine Maitlaiul. I ha\e preferred this Method to that of a more general anil concise (!lassiti- cation, in order that it may at once be obvious that I have not oveilooked tiie least of tiiem. The Task has bei ini)>l painliil ; painful to witness so melau- elioly a Display of disiugeiiuojs and contiacted Feeling, no less than to pursue each individual petty Insinuation among the Brakes and Jirambles of .lealonsy and dwarlish Spite. To shoot Sparrows with Cannon Balls is not more laborious. I will put it to yon, Sir, to say whether there be, in the whole of t'lese Charges, one single Accusation wi)ich his been legally, justly, or morally made good against me. I will submit to the Verdict of an} Man who lias but as much Learning as to enable him to read these Dispatches and Reports, with my Answers. I am not surprised that such a Mass of Accusations, emanating from Persons holding iiigii and honourable Stations in His Majesty's Service, should produce, in the Minds of the Members of your Department, as I. feel they must have dono, so strong a prima facie Crnviction of my Folly and (iuilt. I should myself have thought, that the (Quarter whence such circum- stantial, well arranged, and specious Charges [irocceded, atlbrded very strong presumptive Evidence that a ('ase had been maiL out against me. Rut, Sir, i trust I i'ave shewn not only their Falsehood, but their Malignity, by (iiir Proofs and Arguments. Slioiiid I have tiiiled, in your Opinion, to have accomplished .3 ,r ■ ( ■■!>'-, ) accoinplislii'il this Ijy cxU'iiiiil I'iodCs, yet tluTu is aiiotlicr ami oxen more powL'iliil rcsliiiiony to their Iiivaliility and Kaiicoiir, — liieir own internal Evidence. The lamentable Want of Memory, — the utter 'Y-tiance ofDi'os and Times, — the total Absence of any single I'root' beyon, tlie bare Asser- tion of the Writer, — and the Symptoms of Alarm exhibiteil lest the Pro- ceeilinj^s sliould be considered illegal, and my Ueturn secured, — shew, not merely the Folly, but tiie Wickedness of my Accusers. Hut, Sir, it is something worse than Folly, when the high Interests of a whole People are jiut in jeopardy througli the Weakness of an intemperate and indolent Man, worked ui)on by the Chicanery and Ambition of a few unprin- cipled Adventurers; and Deeds of unjustifiable Aggression are sought to be palliated or excused, by ransacking the very Cesspools of Society tor Accusations and Calumnies of such a Staple as those |)resented to you from Upper Canada. Tile Reasons, Sir, I think, are now obviovis wliy su';h ti Collection of the most false, and certainly the most foolish Charges, as |)erhapswere never before transmitted by any {)overn<3i', were not previously submitteil for my Answer. The only Thing I cannot account for is, that they sliould have been laid bcfbro the Privy ("ouiicil jireviously to my seeing them. I must ill all Ilonour to your liigb Feeling suppose, as I have stated, that you wished for their Lordsliiijs' Advice, whether such an exposure of Colonial Kxccutive Imprudence sliould be permitted. A Man whose Character and Prospects and future Interests are at stake, must be expected to feel keenly, and to speak feelingly. He tnust be expected to repel indignantly the Imputa Dns of high and serious Charges ; Charges as untrue as their Authors. He certainly will feel irritateil and goaded, as with the Stings of Mosquitoes, by the Multitude of sharp, bitter, venomous little IJites, which the small Abilities and keen Malignity of liis Jbilcd and infuriated Enemies have inflicted upon lum ; while, amidst all his Pains, " he cannot choose but laugh," at the Antics and Follies which the little Insects, in their short-lived Career of puny Vengeance, are unconsciously exhibiting. My Enemies, Sir, are foiled, and they feel that they are so. They anticijiate their Disgrace, and are |)reparing for it. I have the Honour to remain, Sir, T.. ilK. liiKl.. Mo,,. ,l„. Sec. of s.au., ^'""'- "'"^^ obedient humble Servant, C.loniiil Dcpirt.nont. .'"HV U AM'OI.K W II.I.IS. a? ■ i ■X: Inclosure, No. 1. (F.) Statement respecting the Establishment of aii Equitable .hirisdictiou in Upper Canada. Sir, liiitli, ;")th UucciiilKr ISJS. As the Establishment of an Equitable .lurisdiction in Upper Canada is par- ticularly mentioned in Lieutenant Ciovernor Sir P. Maitliiid's Sejiaiate Dispatch, and the Report of Mr. Atttorney General Robinson on that Subject inclose, 1 therein, and the Matter is immediately connected with my Claims on His Majesty's (jovernment, I trust I may be allowed so fiir to sever it fioiii all other Circumstances, as to make Mr. Robinson's Statement on this Head tlie Subject of a distinct Reply. " Circumstances," to use the Language of Mr.. Attorney General Robinson in this Report, " not of a very agreeable Nature, induce me, in justice to " myself, to be more particular in the Relation than would otherwise be neces- " sary ; for if you. Sir, have given Credit but to a small Portion of what you '• have read, it 'is only prudent that I should place in your Hands, for Tians- " mission to His Majesty in Council, the Means of guarding against the " Efl'ect of Misrepresentations from other Quarters, which may do me material " Injury." Lord Hathurst's Dispaich on this Subject is dated the 9th of Apri. 18'27. It is in part as follows :— " It has occurred to me, as a Subject highly deserving " Attention, iq^i r '.'(is ) H^l •* Attention, wliL-thcr tlie Judicial (JtHce ol (,"liiinccllor. under tlio Title of " Master of the llolls or Vice Ciiuiicelloi-, might not ad\atitiigoously be com- " initted for the present, cither to the Chief Justice, or to one of the infiarior " Jiidgi's of the ('ourt of King's Bench. An Arrangement of this Nattu'c •• might, if necessary, form the Basis of some more systematic Arrangement in " fntnre Times. Your Excellency is aware that a similar Measure has been " ad<)])ted in Nova Scotia ; and that, under a recent Act of Parliament, a System " very simila'- has been introduced into the Court of Exchequer in England." The Disp h of Lord Cioderich, o( which I was the Bearer, is dateil the lt)th of July I827. It says, " It has been in contemplation to make IVovision " for the Administration of that I'art of the Law of England which in this " Country is administered by the Court of Chan'jery ; and it is intended to " commit that Jurisdiction to Mr. Willis, who lias practised for several Years " in the Court of Eciuity." On the lytli of September 1S27 I arrived in Upper Canada. On the 18th I delivered Lord Goderich's Dispatcli to Lieutenant Colonel Sir P. Maitland, to whom it was addressed, at his Cottage at Stamford, near Niagara, llis Excellency, on that Occasion, when I Hjjoke of the proposed Court of Ecpiity, emphatically observed, " Yes, Sir; but you have not got your Etpiity Court " yet." On the '2Stii of October 1 submitted a Scheme (or the proposed Court of Equity to Lieutenant (iovenior ^Liitland, tin'ongh tiie AJedium of Major Ilillier, his Excellency's Private Secretary, and also'to the Law Officers of the Crown in Upper Canada; and on the Q[)ih of (October I received a Note from Mr. Attorney (iencral liobinson, in the following Words : — ' There is " nothing that calls for Remark in your Prospectus, after tlie Conversations " we have had on the Subject. As il regards the O'licers, it r.pjiears to me " judicious and simple, and at the same Time sulHciently conqjrehensive. " ' Crescif eiDido' must be your Motto. Experience, or rather iCxperiment, will " probably show otiier Things to be wanting, which, from Time to Time, can " be supplied." On tlie 2 1th of l)ecendu-r ] connnnnicated to the Provincial Government that I bad been informed that an Act of the Local Legislature was now considered necessary by the Law Officers of the Crown in England, in order to create an Equity Judge in Ujjper Canada. This Opinion, I iiave the best Reason to know, Mr. Stejjhen, the Learned Connsel totheC'oionial l)ei)art- ment, considereil erroneous, and I perfectly concur with him. It ajjpears that in Nova Scotia a similar Judicial Ofii :r was aj)pointed by Ills Majesty alone, without the Intervention of the Legislature ; and the Proceedings "in that ui exact ''lecedent for Upper Canada ; for it ' Uie K^ig could do that in one Colon v which i' ..n.nher, when both are equally legulated by Province a|)peared to fi.rnisn seems difficult to suppose ;! .' His Majesty was unable to do the same Laws. On the 'J7th of Deci. mbcr I ioceived a Note from i\Pjior llilli illier, as Private Secretary to the Lieut nant Governor, saying, " It inigiit be well f()r me to " confer with the .At . vy Ger.^ral on the Bill to be submitted to the " Legislature." On tl , . •a o*" December the Lieutenant (iovernor personaiiv expressed himself to me to the ; aine Effect. On the ad of January I dinf^d with Mr. Attorney General Robinson, on his Invitation, for the e\prco\einor alone, and that my Arrival in Canada was bv no means gratetiil to the Provincial Go\ernment. On the 'tth of February I8'iS 1 wrote to Mr. Attorney (ieneral Robinson, for the Books and Papers res|iecting the Court of Chancery, wiiicb I lent him on the iJd of January ; and the same Evening 1 receivei! from him a \'ote, of which the (bllowing is an Extract: " ]My dear Sir, — 'i lie Books and Papers '■ you were so gootl as to leave with me are at n' ■ OiHce ; I shall be happy to " meet you there, at Half past Nine or Ten Jo-morrow J\'orning; at all " events 1 will be there at that 'i'ime to see that they are sen:. Very truly " yours, J. B. Robinson." On the .5th oi' February I accordingly went to his Office at the Time appointed ; and while there, from the Papers I had lent him, I wro^e the Re|)ort I was rcipiired to fiirnish, in consequence of Mi. Huskisson's Dis])atch. (Tiic several Dispatches of Lord Bathurst, Lord (iudeiieh, and Mr. Secretary Hus- kissDii, and the lieports thereon, are annexed to th : Keporl of Mr. .Attorney General liobinson, and aisc .nxoiUj^any this Statement.) After waiting at Mr. Robinson's Office '.'<■"■ so.iie Time without seeing him, I walked u|) to the House of Assembly, x iurc I found him, and goi' g with him i ito a (.'om- mittee Room, gave hip; ■:•• Report to peruse. \\ hen he r-u i it, he said '• he " thought with me dec u'dlv tiui' there should be a sc .. 'ite Court." On this tl le tollowin!. Day, pro|)osed Court of Equity Members of the I5ar and 01 oni'' tinicated my Sentiiiic . respecting the i. J. Rolpli and to Mr. BidvicJ, Two eminent House of Assem!)lv ; who, the Chief Justice i Y ■ has 1 ( '.'70 ) '.WIS inConiied inc, wciv fio(|iu'iitly his (jui'sts, miuI to whom I was inlrodnccil by thu Receiver (Jencral, a iVIenibei' of the Upper House, I conreiveil tlial il was my Duty to explain to every one a Matter of such Importance, and so little generally understood ; and although the Gentlemen I have mentioned were said to be political Opponents of Mr. Attorney Geneial Robinson, yet as this was not and could not be possibly considcreil a political Question, I endea- voured, if possible, to procure for it all the .Support I could obtain, by con- vincing these Gentlemen of the Propriety of the Measure. I believe it has not been unfrequent for the highest legal Authorities in England to ctmsult with Members of the Bar, though such Barrister i)e jjolitically opposed to the Minister, respecting any Measure with reference to the Laws which such Bar- risters, particularly if in Parliament, may wisii to introduce. I do not think Lord Eldon would have objected to consult Sir Samuel Romilly, or Lord Tcn- terden I\!r. Brougham or Sir James Scarlett. On the same Day, February .5th, I transmitted to the Lieutenant Governor the Opinion I was required to (iirnish. On the 10th of February, it appears, that of the other Judges was sent ; on the 12th of February that of the Solicit.or General ; on the Ifith of February that of the Attorney General ; and on the 19th of February, his Excellency the Lieutenant Governor, in compliance with Mr. Secretary Iluskisson's Direc- tion, sent down the Message to the Legislature on the Subject. On the same Day the Attorney General moved, in the Lower House, that the Matter be taken into Consideration by a Conmiittee of the whole House on the 21st of February, which was ordered ; and at the same Time One hundred Copies of the Papers were ordered to be printed. On the 21st of February, the Attorney General again moved that tiie Matter be brought /brward ; which was nega- tived, as the Papers had not been printed. On ALirch the 1st, the Papers were printed, and laid before the House. On March the 2d, another Document, which had been omitted, was ordered to be printed, and an Address was moveil' to the Lieutenant Governor to affix the Signatiu'e of Lord Goderich to his Dispatch of the 19th of July 1827, whicii had been omitted. On MmcU the 10th, the Attorney General moved, that the Mattel- be brought under liie Con- sideration of the House the tbllowiug Day. On March tiie lltli, Notice was given that the House would be prorogued on tlie 25th of that Month. On March the 12th, the Parliament not having then a Fortnight to sit, the Matter was brought forward. I attended the Debate, and found that Mr. Attorney General Robinson made so nvAny palpable Mistakes in stating what would be tiie Objects of equitable Jurisdiction, that previously to the Business coming on the follow- ing Day, I called him into the Speaker's Room, and informed him of his Errors, in order that he might correct them. His Answer, made in a very rude and abrupt Manner, was, " We don't come here, Sir, to discuss Points of " Law." On March tiie 13th, the iNiatter was, for a Period at least, concluded. Mr. Attorney General Robinson's first Resolution, viz., " That it was neces- " sary to make Provision for n equitable Jurisdiction during the present Session" being negatived entirely; prin. i; illy, 1 have every Reason to believe, fiom his pertinaciously persisting in reiaining the Wcrds " during the present Session." Mr. Rolph then proposed tlie fblluwing Re.solution : — '• Resolved, That tiiis House, although sensible of His Majesty's (fracious " Intentions, is already so occupied with important Measures, augme'i'ited by " that Part of the Business of the last Session which was unavoidably post- " poned, as to render it impracticable to bestow, during the present Session, «' that mature Consideration which is due to so important a Subject in its " complicated Details, as the Introduction of an equitable Jurisdiction into ' this Province; particularly as the Public Documents intended for the " Information of the Legislature have, from the Date of their Transmission, " and the inevitable Delay of printing them, come late in the Session under " the Attention of tlie House ;" vvhich was put and carried. Mr. Rolph then proposed, that tlie Judges of the Colony should be put " on the same " independent Footing as those in England ;" whicli was also put and carried. In proiiosing this Resolution, he took Occasion to notice the Inconvenience arising from elevating Provincial Barristers to the Bench, as they were generally so connected by Kindred and Local Interest as to excite Suspicion, at least, in the Administration jf Justice. Mr. Rolph ( '^71 Afr. Holpli thi'ii proposed, " I'lial tlu' ( liicl .liislitc slioiild not lii' ;m " I'lxeciitiNe Coimcillor ;" and ilwi'lt, on tlie Impropriety oC .Iiidm's beiiijj; [jolitical ClianictLMs. The Attorney Cienerai oj)posed the Resohitioii ; never- theless it was put and carried ; and an Address to His Majesty, embodyinrj these Resohitions, was then voted. As to my Attendance at tlic House during tlie C'iiancery Husiness, and watchinu; it througluiut with ahnost parental Solicitude, I can only say, I con- sidered it my Duty. Sir ,Fohn Copley, when Master oi' the Uolls, hroufjlit t()rward, in the Briiish House of Conniions, the Propositions of the Chancery Commissioners, in a Manner too able ever to be t()rgotten ; and suri'ly tiiere was no more Indelicacy in my being present, than in I-ord Lyndhurst's making his Speech on tlie Subject, or in my attending tlie House of Assembly, than in Sir William Grant and Sir.Iolui Copley (who had Kstates (()r Lit!.' in Master- ship ot the Rolls, while I, though possessing a vested Interest, hail only, as it is now said, a Sort of contingent Remainder,) being most efiicient Members of the Ibitish Parliament. Mr. Attorney (ieneral Robinson states, that it was at n\y Suggestion a Call was made ti)r his Details ot'tlie Measiue. He really gives me more Credit than I deserve. I would, had it occurred to lue, have readily nuule such a Suggestion ; i'eeling, that in a Measure of such Importance to a new Colony, he ought to have l)een prej.ared with every Detail, and all the Information which cotild possibly be retjuired on the Subject. An C()uitable .Jurisiiiction, if erected without ample Kxplanatiou of its Powers and Ktlect, could be of but veiy little Use. It would be so . vhiiig like th.e (,\)urt of Chivalry, — at the ])resent Day scarcely knrtwn to exist, but for its Xante. On the '25tli of March the Provincial Parliatiieut was prorogited. On the '2<)tli of March I addressed the ibllowing Letter to Major Ilillier, as Private Secretary to the Lieutenant Governor. Dear Sir. Yorlv, 1:|)|kt( un^ula, ■Jdtli Maich ISJS. Tnt; tetitporary Stispension of the Erection of an etpiitable Jttrisdictioii iti this Proviitce affords me ati Opportiunty (atid 1 trust, without Indelicacy) of laying before bis Excellency the l^ieiiteuant Cjovernor some further Extracts from the Debates in the British Parlianietit, on the Chancery Questiott, as particularly ajtplicable to the Reports of the Judges and Law Oflicers of this Colony, (which ai)pear frotn their Dates to have been made tnany Days after that which I had the Hottour to traiisinit.) antl ikjI, altogether irrelevant to the stibsetiuent Proceedings. 1 atti the more ilesirous to do so, from your Iiitimatioti that the Attorney General voitld jirobably comimuiicalc with His Majesty's Government on the Subject; feeling it als.< my Duty, from the kind Cotisideration I have experieticed, to transtnit a Statement (which is at any I'ime at yoitr Service) of every thing that has occurred respi cting this .Matter, from my Arrival in the Province to the present Time. A Detail of the Pro- ceedings in the State of New York, relative to the Junction ot' Courts of Law and Equity, and the rird rucc Examination of Wittiesses in the ( ouits of Judi- cature in that State, mentioned in Lord Lyndhurst's S|)eech, (both which Measures appear to have been recommctided in this I'rovince,) may, I should imagine, if necessary, be easily attained. I have myself the Ilonoiii of a slight personal Accpiainta.ice with tlie Ex-Chancellor Kent, to whom Lord Lyndhurst has alluded. I can have no Wish to preclude this Letter receiving the same Publicity tiiat was given to my former one on this Subject. I have the Hotioiu- to remain. Dear Sir, Your very obedient Servant, ,IoM\ Wai.i'oi.i; Wii.i.is. .-J I t ■ ■Hi- In the Debates in the Senate of New York which are alluded to, the Proposition of erecting the Courts of Law and Equity, and abolishing written Depositions of Witnesses, were rejected. On Wecuiesday the 'ifth of March the Lieutenant Governor left York for Stamford Cottage, near Niagara, where he usually resides. On tlie '27th of Marcii I wrote to Mr Stephen, inclosing him ail the Proceedings, and re- quested that he woidd lay the Papeis respecting the Establishment •>{ an ecpiitable I ^ ( '^7v' ) t'(|iiil;il)li' Jiirisilirtioii in li'ppur Caiiiula, with a I.cttii thai accompanied tliL-m, hcfbrc tiic (.'olonial Secretaiy, it' it met with liis (Mr. Sicphcn's) Appro- bation. On Saturday the SOtli of March I received a Letter from Major llillier, saying he had sent the Papers over to the Lieutenant (iovernor, and tliat I was mistaken in supposing that the Attorney (ieneral would communicate with His Majesty's Government, for tliat his Report would naturally he macK- to tiie Local Government. On the 1st of April 1 saw Major iliUier at the Government Office on this Subject, when lie said " It was perfectly right in " me to comminiicate with the Government at Home, and he recommended •' my doing so, as he considered 1 had a vested Interest in the Subject." On the lOth of April Major Hillier informed me, with reference to my offer to send my Papers on the Establishment of an eijuitable Jurisdiction to the Lieutenant (Jovernor, " that his Excellency felt no Desire whatever to " be acquainted with any Report to His Majesty's Government 7iol passing " through his Hands." On the 8th of May I had the Honour of an Audience of his Excellency, and recjuested him to transmit a Letter, which I read to him, to the Secretary of State, applying for the OlKce of Chief .liistice in Case of a Vacancy, until I should be appointed E(juity .fudge, which was much more consonant to my Feelings; and I then informed his Excellency of all that huU passed between Major Hillier and myself respecting tiie Transmission of the Ecpiity Papers. His Excellency seemed to acquiesce in all I said on that Subject, and oflered to transmit my Letter, if I would mcrelij inclose it to him. He said, " I cannot. " recommend /yo«, Mr. Willis, as I must, or I have promised, to reconnnend " the Attorney General, for I think inni the best Servant His Majesty has." I said I was too little known to his Excellency to expect, or to ask Ibr any such Favour from him. His Excellency made no Complaint whatever respect- ing my Conduct in any respect, but on the contrary was most courteous and civil. The Degree of Credit whicli, under these Circumstances, is to be attached to Mr. Attorney General Robinson's Assertion, " tliat the total Failure of " Support, and especially from those Persons with whom Mi'. Willis had " chosen to place himself in tiie most confidential Coniniunication, is too " evident, that he should say any thing about it," may be easily dechiced. I must say he evidently labours under a Delusion, which, if possible, I would readily suppose was not wilful ; but when I find it insinuated that 1 wished the Measure to fiiil, for the Chance of getting the Chief ,Iusliceshi|), 1 ll'el it due to myself to declare, as must be most obvious, that his Fears on that Head have led him completely astray, .i:ul that such was not the Case. Lord Rathurst's 13ispatch contemplates the U.'IIOn ()/'thc ChicJ' Justiceship ami the Mastership of the Rolls ; therefore such a Proceeding on my Part would have been w^orse than Folly. Mr. Rolph's Resolution goes to deprive the Chief .Justice of political Influence; I should theretbrc obviously have waited (juietly for tiic Master- ship of the Rolls, to whose Appointment to tiie Executive Council there might not perhaps be the same Objection as that which has iieen already cxjiressed with regard to tlic Chief Justice, hail I entertained any such View. I avail myself, however, of this Opportunity to deny, in the strongest Terms that Language tall admit, ever having interfered, or wishing to interfere, or take any Part in the local Politics of Upjier Canada. I trust I have sutticiently shewn, in the fore- going Statement, that Mr. Attorney General Robinson could not possibly expect that " he should have been fiunislied with a more complete and well " digested System of equitable Jurisprudence," than that whicli he had an Opportunity, if he thouglitfit to have asked for it, of obtaining liom me. I cannot, however, conclude without protesting against my Conduct and C'ha- racter being thus arraigned and aspersed by an inferior Ollicer ; and I trust that His Majesty's Government, to whom the true Colour of the whole Pro- ceedings must now be obvious, will murk in a peculiar Manner their Sense of s^jh Proceedings. I have the Honour to be, Sir, Youi very obedient Servant, John Wai.i'oi.i. Wilms. '^ ( -^l^i ) liK'losuio, \(). '2. Copy of a Message from liis Excellency the Lieutenant (lovernor to tlie House of Asseml)ly, anil Documents accompanying^ the same, relative to the Kstablisiiment of an equitable Jurisdiction in Upper Canada. [T/ie Messa^'e and Documents accompanying the same arc alrcadii vrinlcd in p. 139— 148.] -Jt Inclosure, No. 3. Letter from Mr. Chief Justice Campbell to Major Hillier. Dear Sir, Vorl>, im February 1828. I HAvi; the Honour to inclose herewith the Dispatcii of His Majesty's Secretary of Snite, relative to tiie Erection of a Court of equitable Jurisdiction in this Province, and ujjon which his Excellency the Lieutenant Governor has requested the Opinion of the Judges, as to the most eligible Moiie of carrying such Intention into cHect, in the j)resent State of the Province. Mr. Justice Willis having, under peculiar Circumstances, given his Senti- ments separately, I have now the Honour of sending herewith the Sentiments of Mr, Justice Sherwood and myself on the Subject, for the Information of his Excellency. I am, my dear Sir, Yours fiiithfully, Ocorge Hillier, Esq., Secretary. ' WiLLIAM Ca.MI'IIELI.. Inclosure, No. -1.. (Ci.) Narrative of Occurrences in Upper Canada. Sir, IJiUli, ;"iili DiTiinber I>N28. Unuku the peculiar Circumstances in which I have becji placed, I feel it due to my.self as an Individual, as well as to those who interested themselves in obtaining for me the Api)ointment which I had the Honour to receive to render to you a straight forward and simple Narrative of all such personal Occurrences as have taken place during my Residence in Upper Canada- more especially as a Knowledge of the actual Facts must materiallv tend to defeat those abundant Mis-statements in which I have been (as I trii.st it will ap])ear) ino>. undeser\t dly and ungenerously assailed. On the 17th of September l.S'27 I arrived with my Family in Upper Canada. On the IcSth I delivereil the Warrant issued by Hi.s Majestv for my Appointment as a Judge of the Court of King's Bench of Upper Canada, LordGoderich's Dispatch, and some private Letters of which I was the Hearei; to Lieutenant Governor Sir Peregrine und Lady .Sarah Maitland, at Stamford Cottage near Niagara. I had, on that Occasion, the Honour of being invited to dine with his Excellency. In referring, during the Evening, to the Subject of the Equity Court, I was certainly rather surpri'^cd ,>f an Expression which fell from Sir Peregrine Maitland, and not less .so at the Tone in which it was uttered." Yes, Sir,'* said his Excellency ;" but you have not got your Court " of Equity yet." The Words m;:(le some Im|)ression at the Time, and sub- sequent Events have tended to throw further Light upon their .Meanin'>-. On the 20tli of September we arrived at York. I had prexiousljT written from England, requesting Mr, Attorney General Robinson to procure a House or Lodging, for our temporary Accommodation. Major Hillier, the private .Secretary of the Lieutenant CJovernor, enr-.ged ,• partments for us at a small Public House in the Town. '^ ^' On I' i ( 47+ ^ J 'I I On the Day ol our Arrival, tliu ("liief Jiistirc sent his Carriaijfo liir us. and inviteil us to Diinier; wlien \vc weri^ inlbrnieil that li" was >fH>\U'i; to Kn^rlaiul, and tliat liis House might be obtained at a Rent of .t'*-JtX) jjur Annum. In London, or Bath, a Third of tliat Sum would be more tliaii sufficient for tlie Rent of such a House ; a similar Sum was never before, I believe, asked for any House of that, or any other Desciiption, furnished as it was, in the Province of Upper Canada. At the Table of the Chief Justice 1 that Day met Major Hillier and Captain Maitland, Aifles-du-Camp to the LieutcTiant (iovernor. On tiie 2d of October, Mr. Gait, JSnperintendent of the Canada Company, a Gentleman of veiy considerable literary Celebrity, called u|)on us, and wrote a most obliging Note, offering the Use of his House at Burlington. The Inha- bitants of York waited upon us in great Niunbers, at the little Public House, almost overwiielming us with Civilities, which were all acknowledged and returned in due Time. The different Newspapers published in the Town (Four in Number) were sent to me ; antl wishing to avoid every Party Distinction, and to hear what passed on all Sides, I became a Subscriber to each of them. The Terms are £1 for a Twelvemonth, to be paid in advance. With the same View, 1 also became a Subscriber to the Reading Room, or News Room, which I only visited 'I'wice during my Residence at York, once in C()ni|)any with Major Hillier and Colonel Fitzgibhon, and once afterwards, to copy an Kxtract (ioni a Paper, and each Time for not more than a few Mimntes. I believe ,Fohn Bull, the Times, and the other English Morning and Evenuig Papers were taken in there. Major Hillier, Mr. Attorney General Robinson, and in fiict all the (Jovcrnment Officers, are Subscribers. On the 3il of October Mr. Gait diank Tea with us. On the Oth of October Colonel Givins and a Mr. Forster dined with us. Mr. Forster is the Son of an eminent Solicitor in London. He had not been very long in the Province, iKuing only a short Time before left the East India Com- pany's Service, in which he was a Military OfKcer. He stated himself to be connected xcith Sir P. Alailland's Family. About this Time the Assizes were held i'ov the Home District, and a Boy was capitally convicted, and sentenced to Death, for killing a Cow. This, accoiding to Mr. Secretary I'eel's Amendment of the Criminal Law of JCngland, is now only a transj)ortable Offence. The Criminal Law of Upper Canada is that of England as it stood on the 17th of September 1792. I took occasion, shortly after tiiis occurred, to give Mr. Peel's Acts, which I brought from England with me, to Mr. Attorney (Jeneral Robinson, ami sug- gesteil to him the Propriety of assimilating the C'riminal Law of U])per Canada altogether to that of England, or at least giving the Provinci.! tlie Benefit of Mr. Secretary Peel's fmprovements. About this Period, I also suggested to Mr. Robinson the Utility of a Savings Bank, particularly for the Benefit of the Emigrants on tlieir fir.'^t Arrival ; no Inteiests on their Deposits being allowed by the Bank ofUjjper Canada. To this, however, he seemed very mncii averse; and I at length disco\ereil, tiiat any Projjosition that did not originate with himself was not generally attended with his Ap|)robation. I anujsed myself with obtaining sucii Information as I was able respecting the Manners and Habits of the Peo])le, and by occasionally walking out on the Shores of the Lake with my Gun. On one of these Occasions 1 met a young Man of rather prepossessing Ai)pearance, who I afterwards discovered to be Mr. Ilemy Slierwood, the Son of my fellow Puisne .ludge. I found he was the Attorney (ieneral's Pupil, and was about to be entered at one of the Inns of Court in England, I there- fore took an Interest in him, and endeavoured to point out to him the Coiu'se he shoulil pursue in his legal Studies, and offered to give him any Instrnctioa in my Power, particidarly in ecpiitable Proceedings, which are utterly unknown in Upper Canada. Twice aflerwards I went out shooting witii this young Man, whom Accident ha- thus first thrown in my Way ; and once I well remember meeting the Attorney General, and asking him to permit Mr. Henry Sherwood to go with me to the Island, a Place in the Neighbourhood id)onnding with Wild Ducks, which I wisiieil to visit, I mention these Circirmstances thus ininutelN, from the vi'ry extraordinary subsecpient Conduct of this Person, On I: g!'>. ( '•».-. ) \ On tin- full oCOcliilioi- I tiiiu'd witli tln' Moss ul llic (iSlli IlriiiiiKiit, :it ll..- (iarri-oii. On the lOtli the Lieutenant Governor canie to Yoik, ami loft it tlie next Day. On the 17tli iMr. Tlionipson, a young Enf];lislunan in tiio Kiii|)lov of tlie CaiKula Company, vlio hail aooompaniotl us on our .(ournov Cioni Now York, ami a Mr. Cawiloli, then Deputy Clork of the Crown, lormorly an Oflioor in the lootli Hegimont, introduooil to me by my i'Vieml Mr. Wilkinson the Special I'leailer, spent the Kvoning witii ns. On the li)th of October 1 rode out with my Sister and Mr. Solicitor CJeneral Boulton, who lent me a IJorse. On the '20th of October Mr. (lalt and Mr. Thompson dined with us. I here lurposoly omit a.l Mention of Couvorsations and I'roceedirigs respecting the Kstablishment of an ecpiitable Jurisdiction, as they are fully detailed in the Statement (F.) On the '..'oth of October, I rather think, though 1 am not positive as to the Day, 1 took the Oaths before the Lieutenant (Joveriior and Council, as a Judge of tlie Court of King's 15oncli. On that Day also Mr. (Jalt and ?.ir. Thompson dined with us. On the 21th of October, Mr. Cawdell dined with us. On the 1st of November Mr. Thompson, and on the '^d of November Major and Mrs. Hillier, also dined with us. On the .Oil) of November, Michaelmas Term, according to the Provincial Statute, began ; and I took my Seat on the Bench togct/ier vith tlie Chief Justice and tlie other Puisne Justice, as a Judge of the ('onrt of King's IJench. There was more Business during this 'i'erni than usual ; and as the Court, in general, did not open till Twelve o'clock, its Sittings were continued rather late in the Evening. 1 was almost entirely occupied during the Teini with judicial Business. On the Uth of November Mr. Forstcr dined with us. About this Time the Lieutenant (Jovernor and his Family arriveil at York from Stamford C'ottace, nenr Nigara, where they usually reside ; and on the Day after their Arrival 1 called, in com])any with Mr. Justice Sherwood, on the Lieutenant (Jovernor. On the l^Jth of November I dined with Mr. .Vttorney General Robinson, to meet the Gentlemen of the Bar ; and there, for the first and only Time, I dined in com])any with W. W. Baldwin, Esq., the Treasurer of the Law Society, and Senior Member of the Bar. Dr. Baldwin, as he called himself^ from having taken the Degree of a Doctor of Physic at lulinburgli, and for- merly, I believe, practising Medicine, has always struck me as one of the best educated and most sensible Men in the Province. He is a Man of very exten- sive Pro|)erty in the Neighbourhood of Y'ork, and his Connections are highly respectable. One of his Sons, Mr. Robert Baldwin, who I also met on that Occasion, is, in my Opinion, one of the most able and industrious youn<;- Men at the Bar of Upper Canada. Dr. Baldwin's Brother and Neighbour is Cai)tain Augustus Baldwin of the Royal Navy, an OiHcer, 1 believe, of distinguished Merit. In private Life no Family can be more respectable ; and I may add, as it is a sort of Badge in Upper Canada, I have observed them to be regular and constant Atlentlants at Church. I was also invited to iliiie on the same Day with the Chief .lustice. On the lljtli of November, the last Day of Michaelmas Term, according to the Statute of Upper Canaila, Judgment was given in Two Casus. Li the First 1 differed with both my Brother Judges, The Case was this. A Man had sent Cloth to a Tailor to make him a Coat and Trowsers. The Tailor ilid so ; but out of his Em|)loyer's Cloth he also made a Coat and Trowsers for another Person, who admitted this to be the Case. The unlucky Owner of the (,'loth, on this Discovery, went to a Magistiate, who issued a W'anant against the Tailor, and bound him o\er to appear at the Sessions, and answer llic Charge. The Prosecutor, however, was not forthcoming at the Trial ; and the Tailor brought an Action against him f()r a malicious Prosecution, and recovered £'Z Damages. The Defendau'^ (the Owner of the Cloth) moved for a New 'I'rial ; and contrary to the 0|)inio.i of my Brother .ludges, I held, '• That although " theie must be a felonious Intent to constitute a Felon}', and notwitiistanding '■ the Conversion of the Cloth might not amoiuit perhaps to a Felony, yet " v.iihiiiu. „j 1:1 1ir| ( '^76 ) " without deciding; that Point, as tin- Tiiilor had coinmittod an Art not wiif- " ranted l)V the I'nrpose tor which tht- Cloth was J. hvori'il into his ( hargi', " the Distuirtion as to whithur the Act amounted to a Felony or not was so " nice, that an ordinary I'erson coidd not be supposed to i)c aeqiiainled with " it ; and then tore, in my Ojnnion, there was no (iround li)r the Action." I reprobated bringing such a miserable Case into (!oint at all. I have been more particular in mentioning this Case, because il was the tirst in wliich I gave any Judgment that was not (piite of coinse j and because also it may be taken as an Kxample of the Causes in which even the Law OfHcers of tlu; Crown in Upper Canada (who, as well as all other legal Practitioners, are both Attornics am! IJarristers,") do not scruple 'o engage. The other Cause, in which I did not e. neide with One of my Hrethren on the Bench, was the tollowing ; — The Question was, how laran Action mi a Rule of Court under which inter- locutory Costs are claimeil could he >iistained before the Taxation of such Costs? I held it could not. Mr. Justice Sherwood concurred with me, but the Chief Justice dissented. On the '.'0th of November, Major Wimiiett, Captain Maitland, Captain Donald M'Donald, the Honourable Robert IJoyle, Afr. Flint, and t lie Attorney ( iencral, ilitied with us. On the 'JC'd of November I dined with Mr. Solicitor General Houlton. On the l.'5th Mr. \V;d])ole of the KnM;ineers dined with us. On the 'J7th of Novend)er, the Chief Justice, Judge linnlton, the Solicitor (Jeneral, Mr. Dunn, the Receiver (iencral. Colonel (iimiis, ami Mr. Thompson, dined with us. Mr. .Fustice Sherwood excused himself on the Ground of Illness. On the 2Sth of November Lady Mary and Mrs. Willis called on Lady Sarah Maitland at the (iovernment House, having been iiformeil by Major Hillier that it was usual for Strangers always to do so in thi ///-, 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 yot so far as legal Knowledge or Abilities were concerned, I was mistaken in the latter Part of my Conclusion. On the l!)th of January I went iij) to Burlington, a Distance ot about 30 Miles, with my Wife and Child, on a Visit to Mr. Gait. Business required the ( -'Ti* ; the Picsenco nf tliiit Cicntlcmaii at (jiielpli the Day l)iit one alter we arrived tlicro, ami he coukl not return 'till about Two Days before we came back to York. Whi'e at Burlington, I became known to Mr. ami Mi-s. Kerr ; the latter is a Squaw, and the Daughter of John Brandt, the celebrate(J Indian War Chief. On the'iiSth of .lanuary we returned from Burlington to York. On the ygth of January 1 called on Major Hillier at the (/overnment Office, to enquire if any thing had been done respecting the Chancery Business. So fearful had Major Hillier been that this should come on during my Visit to Burlington, that on mentioning my Intention to go thither, he said, " m ca.se " the Matter shoidd be brought forward, he would keep a Man and Horse " ready to dispatch to nie at a Moment's Warning." On the 29th of January Major Hillier informed me that the Mf jage was in Prtr«aration ; and that he hatl received Papers which he had written for from Halifax, Nova Scotia, respecting the Court of Chancery there, but he had lent them to the Attorney General, and would write for them. He scarcely began his Note, before the Attorney General entered the Office, on his Way to the House of Assembly, and said, " If I would walk with him he would give me the Papers, which he " wished me to see, but they were lefl at his own House." The Attorn'jy General's House is not far from what was intended to be an Hospital, but which the Provincial Parliament now occupy. I therefore accompanied Mr. Robinson to the House of Assembly, and I then entered it for the first Time, and heard a Debate on printing a Petition, in a Matter which I rement- bered to have heard before in the Court of King's Bench. The Attorney General ojjposed the Measure, but it was carried. We then left the House together; and he said, " I think you must have had enough of the Debates, '« and that you will not go again." I replied, " that I certainly was not " enamoured with the Proceedings." I again spoke to the Attorney General respecting the Criminal Law, and the Propriety of availing ourselves of Mr. Secretary Peel's Amendments ; but he objected, seemingly not approving of any Alteration, at least for the present. He then gave me the Papers respecting the Court of Equity in Nova Scotia. I was liequently in the habit of going to the Gaol as an official Visitor, and the Prisoners had often applied to me for Work. I considered it would be very beneficial if an Act were passed similar to the English Statute, for enabling the Judges and J' ,nstrates to sentence to Hard Labour, as well as Fine and Imprisonment, i Ue Price of Labour in Upjjer anada is very exor- bitant. Having copied almost the whole of the British Statute, I sent it to Major Hillier, as Private Secretary to his Excellency, with a Request that he would submit it for Consideration. He afterwards told me tfiat the Atlarney 'General did not approve of the Measure. I v/as also most anxious to get an Act for establishing a Savings' Bank, particularly after the Conversation which had taken place with his Excellency on the Subject. I wrote to the British Consul at New York for the Rules of the Savings' Bank established in that City, and sent them to the Lieutenant Governor. Having frequent Occasion to visit the Parliamentary Library kept in the Hospital, where the Two Houses sit, I had much Conversation with Mr. Sullivan, the Librarian, on the Subject of the Savings' Bank, having recommended that Gentleman to Major Hillier as Secretary, in case such an Institution could be esUiblislied. I got from the Library One or Two Volumes of the Edinburgh Review, containing Articles on the Subject of Savings' Banks, which I sent to hie Excellency. This Library was a great Source of Attraction ; and to get at it I Has necessarily compelled to go through the Loblies of both Houses n^ Parli?,- ment. The Kindness of the Speaker of the Lower House in inviting me to hir Room, and making me acquainted with the different Members, and the Infor- mation I .eceived from him and many others respecting the State of Education, Religion, and the Customs and Agriculture of the Country, induced me to become a very frequent Visitor, more particularh ;is I wished to be on the Spot ^\hcu the Chancery Quest, u should be or iit forward, and I might be wanted. I had also a t'urther Object: as the hospital had been occupied bv the Legislature, to the Exclusion of the numerous poorObjects for whom i't was < -28U ) was originally inteniled, and the I'unds of the Society for tlie RelieC of Strangers in Distress were nc^ as Dr. Strachan informed me, very fl' iiish'iig, I was anxious to obtain something by way ^i' Rent from the Legislature for the Use of this Hospital, thai the Poor might in som, /Icasiire be indemnifitil for the Loss of a comfortable Building, by the Support such a Fund would aUbrd to a Dispensary which I succeeded in getting established. With these Views, and these alone, did I make my Visits to the Hospital. I was necessarily present at various Times, while thus waiting, at the Debates of tiie House. So far, however, from mixing myself up witii Politics or Party, that upon the only Party Question I heard of, that, namely, respecting the Arrest of Colonels Giviiis and Coffin, I retreated as quietly as possible from the Hospital, being preceded in my Flight, about a Minute's Interval, by the Lieutenant Governor himself, who almost ran from a Cornev of the Street, where I had observed him watching the Result of the hostile Embassy of the Serjeapt at Arms. Mr. Gait came to York the same Day we returned from Burlington. During my Visit at his House, I had conceived a Plan for establishing Branches of the Bank of England in the Colonies, particularly in Upper Canada. I commu- nicated this to Major Hillicr, for the Information of the Government, and also to Mr. Gait, who took up the Measure so far as to go into Detail, and send his Ideas on the Subject to some of his Friends in England. I had previously suggested to Major Hillier an Idea I entertained, that it would be very beneficial to the Colony if Baronets were created by His Ma- jesty, under the 31st Geo. 3. c. 31., as those of Nova Scotia were made by Charles I. ; and I remember personally mentioning this to the Lieuter .nt Governor, after Major Hillier had warmly ajjproved of the Measure, and his Excellency iibruptly answering, " Ihen, Sir, you wish to create an Aristo- " cracy." I replied, I thought it would be the best Thing poiisible in such a {'ountiy. At this Time Mr. Gait nearly lost his Sight, from Inflammation in his Eyes, and I became his constant Visitor at the Inn where he lodged. One Day, between the '4}th of January and the Ith of February, I acci- dentally went into the House of As.sembly, and heard a very impressive Speech by Mr. Rolph against Imprisonment for Debt, and the Attorney General's Answer. I then offered to lend the Attorney General Sir Wm. Evans's Obser- vations on the Insolvent Acts, but he declined the Offer. I subsequently lent the Book to Mr. Rolph, who, though the Arguments militated against his own Position, was very much pleased with them. There is no Bankrupt or Insolvent Law in Upi)er Canada. I was, as I have already stated in another Document, introduced to Mr. Rolph and Mr. Bidwell by the Receiver General. The Chief Justice had borne ample Testimony to me of the Merits of these Gentlemen, who are in the habit of being his Guests, and the Guests of other Legislative Councillors, although they arc politically/ opposed, as it is said, not to the Government, but to the Folly of the Attorney General. Mr. Bidwell gave me much valuable Inform- ation respecting the Prison Discipline in the State of New York, and expressed himself as being anxious to introduce a Scheme for a xccll-regulatcd Penitentiary or House of Correction in Upper Canada. Between the (ith of February and March 15th I went occasionally to the House of AsFcmbly, to ascertain if any thing were doing respecting the pro- posed Court of Equity ; and on one Occasion I heard a very animated Debate on an Address to the King respecting the Alien Bill. I never hoard more affectionate Attachment expressed than by those who were opposed by the Attorney General, and who, as it appeared by the Debate, had been stigmatized as factious and rlisloyal Subjects by the Provincial Gavernment. On that Occasion the Solicitor General and the Rev. Dr. Phillips were sitting near rne in the House. Many of the Officers of the Garrison, who frequeritly attended, were also present. On the 7th of February I was at the last Ball given by Lady Sarah Maitland during the Season. On this Day we removed from the little Inn, and got into our House. On ( --'M ) On the l'2tli oiTibriiarv 1 wiolo In icfjiii-;! tlic llonoiir <>{' the •.ioiitci mi (Jovcriior mid Liidy Suiuli Miilliii)ir.i Comicmy iit Diniu'r on ilic '.'tllli i)l' I'ebniaiy ; anil <>n the IMlli ct' Fehiu.ny 1 received a Note tVoni Sir Peregrine and Lady Sarah Maitland, statinjr tlieir Regret thai they eoiihl not have the Hononr of waiting on Mr. and Lady Mary Willis at Dinner on tiial Day. On the 11th of L'ehrnarv I went with a Part of my Family to a Ball given hy the Officers of the (iSth'Uegiment at the (iarrison. After the Hall, my Wife was for a considerable Period vers/ much iiidispoxed, antl consequently we neither accepted nor gave Invitations. About this Time Dr. Dunlop, the Ward;>n of the Forests of the Canada Company, arrived at York, in consequence of Mr. (Jalt's Illness. It was about this Period also that I went up to Torronto on a Visit to the Rev. Mr, ^Rf'Grath. I there met Lieutenant Colonel Adamson, a Hritish Officer of much Distinction, at whose House I dined on the Ibllowing Day, Sunday. I observed at Church a lamentailo Want of Prayer IJooks, and informed Mr. M'Grath of the Terms on which the Society for Promoting Christian Knowledge distribute their Books. There were not Twenty Prayer Books among a Hundred People. After Church we rode to the Indian Village on the Credit River, and examined their School. The Teachers expressed a great Wish for Prayer Books and 'I'estaments, which the Indian Children read admirably ; and I afterwards sent a small Supply to Mr. M'Grath lor his Congregation, and to Mr. Jones, the Indian, for his People. The Indians, though in fact Methodists, attend Mr. M'Grath's Church, the Church of England, and allow him to preach in their Chajjcl. The Indians were anxious to have a Forge and :i Carpenter's Siioj) estab- lished at their Village, and to learn how to make their own Iniplements of Husbandry. I mentioned these Circinustances to Major Ilillier ami the Lieutenant Governor ; and also urged tiie Propriety of fiirnishiug them with Books, particularly Prayer Books and Bibles. His Excellency's Answer was, « That he himself was shortly going to the Creilit ; and as to the Books, the " Society could not afibrd to let them have any." I replied, " The Parent " Society in England, of which I was a Member, had voted iiOO in Books for '« the intended College, and that 1 was sure it would not be less liberal where «' Books were so much wanted." When I arrived in the Province, I had Letters of Introduction to Colonel Givins, Major Hillicr's Fathcr-in-Law. I was informed that it was in my Power to appoint a Clerk of Assize to go with me on the Circuit, and that the Situation was worth i'200 per Annum. This Office, through Major Hillier, I ofiereil to his Brother-in-Law, Mr. James Givins, then a Student, and now a Barrister; arid the Otter was at the Time thankfully accepted. Mr. Justice Sherwood proposed to me some Time afterwards to take his Son with me en the Eastern Circuit, which he said I should go ; and that he would tiike Mr. Givin^ with him. Mr. Justice Sherwood said, " his Son had served an Ejectment for him, and he merely " wished him to go with me to prove it." To this I at once assented. I afterwards heard that, Mr. Sherwood was interested in Property sold, or attempted to be sold, in '.he notorious Cause of Boulton v. Randall ; and on the 1st of March I wrote to Mr. Justice Sherwood, and said, as it might be suspected that I should not do Justice in the Trial of a Cause of so much Importance, if I took his Son with me as Clerk of Assize, merely for the Sake of his being a Witness, I must decline allowing him to accompany me. I consulted Major Hillier on the Subject, who highly approved of the Course I had taken. On February 19lh, and up to March the 25th, I occasicnally went to the Hospital to watch the Chancery Business ; and I then heard some of the Debates respecting a Loan of £10,000 to the Proprietor of the Marmora Iron Works, — on the Highway Bill,— on the R.;ceiver General's Poundage,~on the Separation of Prince luiward's Island tiom the District to which it is now attached,— and the Debates on the Chancery Business, and the Independence of the Judges. These, to the best of my Recollection and Belief, are all the Matters I ever heard discussed in the House of Assembly in Upper Canada. I was examined by a Committee o'.'ihc Lower House respecting the Criminal Law. I was informed that a Bill had passed in the Lower House, although 1. L5 opj)osed ( es« ) opposed by the Aftoiney (ioiieial, making mt- Chuncollor lor the Trial in ^(liiity of the Cause of Uoiilton r. Raiulull. I was also informed that the Resolution which I annex, as jriven me by Mr. Wilkinson, (a Ilalf'-pay OUicer of the Line.) who moved it in the House of Assembly, I believe, tor granting .1 1(K) for the last Four Years, for the Use ol'tiie Hospital, in order that the Poor might not sufier, hail been passed. I shewed this Hi^olution, after it had passed, to the Lieutenant Governor, but he has not tlmught proper to confirm it, and the I'oor continue the Sufferers, without the IJenefil of their Hospital ; while the Legislative Body, occupymg it to their Exclusion, are not permitted by the Lieutenant Governor to make an_^ llecompence or Allowance for its Use. Before I conclude the Narrative of all I know of tlio Parliamentary Pro- ceedings in Upper Canada, 1 must mention the .Speaker's Dinner, to which, on the 7th of March, I went by Invitation. In addition to most of the Members of the Lower House, I met on that Occasion the Hon. Mr. Dunn, the Hon. Mi. Clark, and the Hon. Mr. Dixon, Legislative Councillors, Captain D. M 'Donald, and the Two Mr. Reids, of the 68th Regiment, Doctor Dunlop, &c. &c. &c. A Number of loyal and patriotic Toasts were drank. Tlie King with Four times Four was twice, or even thrice, repeated ; the Lieutenant Governor Three times Three ; and God save the King as often sung in fidl Canadian Chorus. On the Health of the Judges being drank, I said, " Unconnected as I am, and always hope to be, « with all party and political Feeling, I shouitl deem myself unworthy of the " Situation I held, were I to interfere in Politics. Unconnected also by Local " or Family Interest in the Province, 1 hoi)ed I should be able to administer " Justice without even the Suspicion of Bias or Partiality." On asking Major Hillier the following Morning why he was not at the Speaker's Dinner, he said, " He was there once, but he did not like the " Toasts they drank." " Why," I replied, laughing, « could you wish for " any thing more loyal than the King's Arms in Transparency at both Ends " of the Room, the King's Health twice or thrice drank, the Lieutenant " Governor with Three times Three, and God save the King repeated more " than once or twice in full Chorus." " The Loyalty," he replied, " I suppose '« wasaJIin «mpliment to you." I answered, "That I tliought it was the " spontane.it.- Effusion of their own good Feeling.". In consequence of my Wifs's Illness, and a sudden and severe Attack, I requested Dr. Dunlop to visit her. Mr. Gait left York for the United States about the Middle of February, and Dr. Dunlop was left alone. His Kindness and Attention, his excellent Understanding and good Nature, rendered him a most welcome and constant Guest ; and I had almost the daily Pleasure of his Company until about the Beginning of May, when he lefl York. On the 23d of March I visited Colonels Givins and Cofiins in the Gaol. They were committed by the Speaker of tlie House of Assembly for a Contempt. For Excuse they said " they weri prevented attending the Speaker's Summons by " Command of his Excellency." On the 25th of March I attended the Lieutenant Governor, in compliance with an official Notice, at the Legislative Council Chamber, when Parliament was prorogued. I also attended on the previous Occasion of his assenting to the Alien Bill, but I forget the exact Day on which it took place. On the 2(jth of March the Lieutenant Governor and his Family crossed the Lake for their usual Place of Resilience, Stamford Cottage, near Niagara. About the 6th of April the Chief Justice called upon me, to ask if I would help him with the Business of the Spring Assize. I liave already furnished a separate Statement of what then occurred, in reply to what Mr. Attorney General Robinson has thought to offer in Vindication of his Conduct on that Occasion. I have also, in the Statement of the Proceedings respecting the Court of Equity, entered with some Minuteness into the Circumstances respecting my Interview with the Lieutenant Governor on the Sth of May. To tlie Request I made on that Occasion, I attribute much of the Evil that has since befallen me. I should here, however, state, that on the 18th of April, the Day after the Assizes were ended, Mr. Kolph and Dr. Dunlop dined with us ; Mr. Rolph had recently arrived in Y'ork from his Residence, which is at a considerable Distance, to attend the Assizes. 1j Shortly ( ^jm ) Shortly after the Assizes Kastt-r IVnn comnK'ncr,!. an.l m conwiui-nci< of he Absence of the Chief Justice.. Mr. Justice Sherwoo.l urmSf ao.i ).esulecl. I have already state.l. in another D..c..mer.t, th.it we-.iifl'rH n 0,.u„oM in ahnost every Case iu which, <,„ the h.st Dav of Kas.cT 'IVr , M the .id, I th,nk) we delivered our Opinions. Althou.:!, in n,v Char^ to 'e Jnry ,n that unfortunate Husiucss, in whic-h the Trial (i,r Murder I'Li ate I I had d.sn,et:y Stat., that I was •■ a .Stran..,- iu the IVovinco. am uni .' mI r ; -^ ^ [ "Pl""'"' ''>■ tl'^- (>l>-^^-''ver N'ewspaper of the 5th of May winch .s annexed ) the Montreal (iazette had stated. '■ d,at pol it c l).frere,.ces were the Cause of the I'roce. dings ;" and the A ..ntreal C , ua n ahjd.ng to what took place at the Assizes, had asserted, " (hai JuS Will.s seemed decidedly on the Side of the Editor of th,,- Freeman." I have appended also the N.nnber of the Freeman, elated the 8th of m"v as it c^ ," ajns some Remarks on this Subject. A Petition to d,s;,lace me fro n n y Office was a so. as I was credibly informed, circ.latcd 'among the 15 u- U Kmgston and m the Xeighbotnho,;i. about this 'Inne. by the I'vie Is o tl^^ At orney General. The iJarrisfers, however, as I have also been iuforn.e 1 e. Sr n \'^ ^"" -"'''""• '^''^•'■^''"'•^'' ^^■'"•^" '" f^'iving Judgu,ent in a Case of J^ g.^s an Outrage as ever was committed iu a civilized Couutrv, altbouuh the Sufferer r«,,, the Brother of the Attorney General's great political iSval I ventured fearlessly to state my Sentiments; and I also took Occasion, at the Conclusion o my Judgment again puhliciv to repeat, " That totally devoid of ; 11 personal, al party, and all political Feeling, it had been andlner would be my earnest Desire to render to every one impartial .fustice." The Editor H ,f M irT"" ^f^'^l^'P^-applied to me fbr a Copy of this Judgment, stating that Mr Jus ice Sherwood had complied with a similar Application. I there- fore without esitation. assented to this Request; and f annex the Number o the Paper (that of 2th May) in which my Judgment, and a subsequJn 1) scussion as to Crnnmal Prosecutions, and the Suppression of Affidavits by the So citor Genera , is very correctly stated. By this Paper also it is „,an.fest. at previously to this Judgment being delivered I had also been attacked ij fl y^T"'\^'rr"'.' ^"^ '"y Conduct at the Assizes, a Paper notoriously in the Interest of the Government of Upper Canada ; that is, a I'aper which does not scmple to publish whether true or false, whatever it conceives may be pleasing to Mr. Attorney General Robinson. ^ When I had cielivered my judicial Opinion respecting the necessary Con- stitution of the Court of King's Bench in Upper' Canada, the Editor of" the Observer again applied to me fbr a Copy of my Public Judgment. I therefore Xe?! ?J.'f D'M•''°l'^^'"■""■'^• ^ Copy "f-^y Notes, deeming it most advisable that a Public Judgment, it published at all. should be given to the World as correcuy .-is possible. I had been, as may have been collected, contemplating a Work on the Laws of the Province. 1 imagined that I could not be more usefully or properly employed. This Work was advertized as preparing for Publication, ind 1 affixed to the Pitle my ou^, Motto, ^' Meliora sperans ;" a Motto not assumed for the Occasion, as the Bill of Houlditch, the Coachmaker in Long Acre fbr painting it on my Carriage, before I left England, sufficiently proves. ihrough the Medium of the Post Office I leceived a Newspaper called the Gore Gazette, dated the 17th of May, which I now transmit, and to which I f^hcit your particular Atten:.ion. The ]• ditor is personally implicate.! in the iar and I-eather Outrage. 1 his Paper I transmitted to the Lieutenant (iovernor with the following Letter. '*"'» Vork, L'|)|)cr Can.iila, 2:icl Mav 1H28. I beg most respectfully to call your Excellency's Attention to the inclosed 1 aper. which appears to have been publisiied by Captain ami Adjutant Gurnetf , of the Gore Mihtia. ^ 1 have the Honour to remain, .. Your verv obedient Servant, MnMien.S,rl..Maitk,ul.K,<'.H. John WALroLr.; WlLL.S. About About this Time Mr.aiul Mrs. Dunn, Major Wiiimctt, the IIonoiiral)le Mr Baby, a LeL'islative ami Executive Councillor, C!olonel Ailainsoii, Mr'. Elmsley, Lieutenant Straclmn, ami Lieutenant Huey,G8th Jleguiient, iluied Witll us. , T^ T • 1 xl. On the SOth of May Mr. Gait dined witii us ; on the same Day I received the following Letter with reference to the Publication in the Gore Gazette. o. Fort Cieorgc, 29tl> Miiy 1828. I am commanded by his Excellency the Lieutenant Governor to acknowledge the Receipt of your Letter of the 22d Instant, with a Newspaper inclosed, which I am commanded to return, and to state, that if you regard the Contents of that Paper as libellous, and desire the Printer should be prosecuted, it is only necessary you should communicate your Wish, and furnish the necessary Information, to His Majesty's Attorney General, who will adopt whatever Measures his Duty requires. If, in soliciting his Excellency's Attention to this Paper, you had any other Object, I am desired to request it may be stated. I have the Honour to be. Your most obedient Servant, G. HiLLIER. To this Letter I immediately returned the ioUowing Answer :— jjj^ Yo.-k, Upper Cuniula, 30th May 1 828. In answer to your Letter of the 29th Ultimo, I c?r. only state, it has been so long established that a Judge cannot deliver an extra-judicial Opinion on a Subject like the presenc with Propriety, that it is impossible in my Situation to consult the Attorney General on the Affair in question. My Object was merely to draw the Attention of the Lieutenant Governor to the singular Circumstance of an Officer under the Controul of Government being the Medium of derogatory Comment on one of the King's Judges in the solemn Discharge of his Duty. It is for the Executive (Jovernmeiit to deter- mine, whether any and what Proceedings should be instituted in a Case so contrary to Decorum, and so repugnant to the Spirit and Subordination of British Government. I remain, Sir, your txbedi^nt Servant, Major Hiiiier, &c. &c. JoiIN WalpOLE WiLLIS. I was a good deal engaged, indeed almost entirely occupied, since the End of Easter Term, in investigating the Powers and Constitution of the Court of King's Bench. My intended Publication, the MS. of "'hich, so far as it goes, 1 annex, (^begging it mat/ be returned,) also occupied hiuch of my Time and Attention, and I very'rarelv went out, unless in Company with one or other of the Members of my Family. . . The Correspondence and Proceedings respecting the necessary Constitution of the Court of King's Bench in Upper Canada have been already very fully detailed elsewhere. ti n t? On the 2d of June Commodore Barry came to York in the Bull *rog Schooner ; I immediately called upon him at the Government House, and invited him to dine with us the following Day. He excused himself as being engaged to return to Niagara. On the 3d of June the Lieutenant Governor came over from Stamford to York, to review the 68th Regiment, I believe. The next Day Colonel Coffin and Commodore Barry called on me. On the 4th of June, when riding out with my Wife and Sister, we met the Receiver General Mr. Dunn, who said, •' Your Court of Chancery now « only waits for you to begin." I said, " If that be all, I will begin directly." The Day was principally remarkable for the Number of drunken People that were about the Streets. It was a Militia training Day, and I believe a general Holiday. A set of strolling Players had been for some Time performing m York. I own I rejoiced at this Circumstance, as I thought it might tend to keep the People from the Public Houses an*', political Discussions, to which they seem to resort for Want of all other Amusement. Some young Men, a few Nights before, were suspected of breaking the Windows of a small Public House, kept by a Man named Scanlan, who had several Irish Labourers as Lodgers. t 38.5 ) LoiltfiMS. Mr. Homy Sherwood (the chlest Son ol' Mr. Justico, and the Attorney Gencriil's I'liitil), wliom 1 have already mentioned, was, I have been informed, seized by a Man named Knowhin, who lodged with Scanlan. Mr. W. Campbell, a Barrister, the Grandson of the Chief Justice, was .said to be implicated in breaking the Windows; but I ascertained from a (Jentleman who was at the Theatre, that Mr. Cam|)bell was in the IMay House at that Time A few Days atlerwanls Scanlan came to me to complain uf Sherwood, Campbell, and others ; and I desired Scanlan to go and make his Complaint to a Magistrate, ami I learnt that he aftcrwanls did so. I told Mr. William Campbell, whom I met in the Street, that I had been informed fw was in the Play House when the Athay took place, and I diil nut believe that he had any thing to do with it ; but 1 urged him to be particularly cautious, especially during his Grandfatntr's Absence, and to clear himseUi even by prosecuting the Parties fidsely accusing him, if necessary, from all unjust Itn|)utations. On the Ni^ht of the 4th of June Knowlan was deliberately shot when coming out of t!ie Thea^rj by a young Man nameil I-Vench. Knowlaii expired the following Day; and French, and Two others, a Waiter at a Tavern and a .Fourneyman Shoemaker, were committed to (Jaol on the Coroner's Inijuest. I was ofllicially applied to, to know if I would bail them on a Habeas Cmpus, but I refused. Scanlan, at whose House Xnowlan lodged, after having complained to the Magistrates against those he suspected of breaking his Windows, very sutldenly left the Province, and was not heard of when I came away. I have been informed that Air. H. Sherwood declared at the Steam Boat Tavern, " It' they could not get rid of Judge Willis in one way, they would in " another." The Declaration was said to have been made to an American, who mentioned it to a young Man named Oates. I have more than once been cautioned to be on my Guard against Assassination. On the 5th of June I received and answered a Letter from Major Hillier on the Subject of the Gore Gazette. These Letters, and such others as relate to the Insults I have received, and to the base Assertions which publicly imputed Disloyalty to me, emanating from young Men in the Office of the Attorney General, have been transmitted to you from Upper Canada, not oidy through the Government Office, but in Duplicate by myself My Letter o( the 25th of June, inclosing these anil other Documents of a personal Character, does not appear in the List of those Letters which, with their Inclosures, have been transmitted to the Lords of the Council. On the 9th of June Mr. Gait came to York, and dined with us on that and the following Day. On the 13th of June Dr. Baldwin called on me ; anil Mr. Thompson dmed with us. On the 14th of June there were Races at the Garrison, which we did not attend. On the iGth of June, tiie First Day of Trinity Term in Upper Canada, I delivered my judicial Opinion, and left the Court, awaiting his Excellency's Commands. The Circumstances connected with tins Business have already been amply detailed elsewliere. On the Kith of June there was an Amateur Play, which we declined attend- ing. A Fracas is said to have occurred among the Gentlemen present, who, as Major Winniett informed us, came to Blnrvs. On the 18th of June the Lieutenant Governor came over to York ; and on the same Day the Solicitor General, as it is said, returned from the State of New York. On this Day I was publicly insulted in the open Street by Mr. .lenry Sherwood, in the Manner described in my Letter of this Date to Major Hillier, a Copy of which must have reached your Department. I must also call your Attention to the Letters of the '2lst and '23d of June, on the same Subject. On the ^24th of June, in consequence of Mr. Henry Sherwood's Insult, which took place, in part, in the Presence of my Wife, her Fears urged her to call on the Lieutenant Governor, then in York, ro complain of it, and als of an open Insult, in the Public Street, offered to her and my Mother, when in their Carriage, by Mr. Forster, who it seems iunl previously asserted that he 4 C declined mi « ( ^80 ) declined associating witli nic i»i (irrounl of' nii/ J'ulilics, ;i Subject on which he Kiid he liad Jirijuinthi ninirr.scd :cit/i Sir Pirc^r'nw Maittand, with whose Family Mr. Forster says he is coiiiu cted. Sir P. Maitland dei\ies ever having had any siicii Conversation ; l Secri'tary >» the rrovinci' ; when I piTsor.ally. a., wull as lij a l.otti-r oC that Date, ndilrcssoil to the Private Secretary of the Lleiileiuuit (iove..,or, pro. ti^steil aj^aiiist the Lej^ahty of tliis I'rocecilin^. I also reqiiesteil l.cave of Absence to he granted to nie hy those duly (jiialitied. To this latter Aiiplicalioii, on the Mh of July, I received an oiKcial Answer, dated the Jd of .July, stating, " thai [ was :it liberty to leave the Province " when I pleased, without I'ennission." On Jie same Day 1 wrote to reipiest " that I might receive the necessary " Warrants for my Pay." About tliis Time my Amotion became a Topic of general Interest. It was considered a Thing so incredil)le, that I was asked tor a Sight and a Copy of the Instrument; a Request which I had no Reason nor Wish to refuse. On tiienthoiJuly, a (Jeiitleman of the Bar, then acting as Deputy Clerk of the Crown, called on me to say be was deputed to ask if I woidcl then receive an Address ; to wliicli I consented ; and a xcti/ mimnws IJody of the most opulent mn\ respectable Persons in the Town of York and the NeighbouriuxM!, including some in the Employ v*' (jovcrnnient, and miiuij ManUrs of the Provincial I'arliament, waited m)on me, and ' - a ('opy of which I transmitted from Liverpool I answered it jy saying, " Canada, as well " to do his Duty. I had endeavoured to i " His Subjects. I was grateful for the Attent " the King would do me .lustice. The iin " expressed for my Family |)rcvented me saymi. The Assemblage, which was exceedingly niimc: mniiij d .'• with the Adtlress, ixpected every Man Sovereign and So ' - and I was sure ss and Anxiety four Cheers Ibr the King, and Three for me, .and then dispersed in tit .. orderly Manner. What is most remarkable, I did not observe one drunken IV .son that Day about the Streets. In the Evening, and some T'.me after the Meeting had dispersed, I received the Warrants for my Pay up to the 2()th of ./une. I was solicited to represent "-.be Comity of Lincoln in the Provincial Parlia- ment. It was also intimated to me, that if I would allow myself to be put in Nomination for the Town of York, in opposition to the Attorney (ieneral, I shoidd be returned. I declined both Ofl'ers, saying, as I had frequently repeated, " That in my Opinion a Judge should never interfere in Politics." I have now found !iow unwise it was in me to make this Declaration so absolutely. " A Judge, I ought to have said, should never interfere in Politics, but when " it suits the Purposes of the Local Got entmenl ; that is, if he consul his own •' Interest, and not the Public Good." I have already, in my Memorial to His Majesty in Council, stated the Circumstances which detained me in York from this Time 'till Thursday the 10th of July. A large Body of the People wished to accompany me to the Steam Boat, but I particularly requested to be permitted to depart (juietly, especially as the Electioti was then going forward. On the Morning of the 10th of July I received the following Letter from Mr. J. B. Robinson, although he must have known that .t was my Intention to have left York, if possible, the Day before. Sir, York, lOtli July IH2H. In the Reply given by you to my Letter respecting a Publication in the Gore Gazette, you state it was the Author and not the Printer of the l^ib- lication that you desire to pro,\ecute ; but you have not informed me who the Author is, or what Evidence can be adduced. The Hou. J. W. Willis. Your obedient Servant, Jno. B. Robinson. To which I returned the following Answer : — Sir, York, Upper Cniiada, lllhjuly (Mixtakv for 10th) I82w. With reference to the Publication in the Gore Gazette, I said, " I oi' course " considered my Name as a Judge would be used in any Proceeding the Exc- " cutivc ( yss ) «' ciitivc Oovernmrnt minht tlpteriiiiiu- to institute for tlii> I'tmishmpiit, not " onlu of till" Printer, hut moit- particularly of iho Author ;"— ///fW///^' Inttli. lit* 1)1 You, |)rol):ii)ly, urc (luili- as well actiuaii.teil with the Author as I am ; I cm liiriiiMli no Kvidcnce om the Subject. I unist own 1 aiu very much astonisheil at a Doubt ever occurring where the l.anguagc is so obvious I remain, Sir, Your obedient Servant, John Walpolu Wim.ih. J. 1), tlobiimor. I'Uq., Ike. To whicli I received the following' Reply : — jjj^. York. lI|)|iiT CbilvIii, Kill; .hiiy IS'.'S. I Have this Moment receiv* your Answer to my Note of this Morning, to which I need cnly reply, that it is quite consistent with your other Commu- nications. I am. Sir, The Hon. J. W. Willi*. Your obedient Servait, .Ino. H. Rodinson. I pIso append heietu a i'laeard circidntcd a few Days before I left York, by a Man, as 1 am credibly informed, named Ninderliill, the HailitfofJohn Hollister, the Under Sheritf, who said ho found them in tlse Coint House. I also append a Number of the Kingston Chronicle, dated the iHth of.Fune, another Number of the Gore Gazette, dated tiio 5th of .fuly,and a Number of the IJathurst Indepenilent Kxaminer, dated the iJOth of August, and a Number of the Loyalist, edited by the Kmg's Printer, and the Organ of the Provincial (lovernment, of' the '^d of August. 1 have received these Two last Papers since I left the Province. I have omitted to ijtatc that Mr. Walpole, Mr. Rt. Buchanan, Son of the British Consul at New York, Mr. Carr, Mr. Brandt, Mr. Jones, the Rev. Mr. M'Grath and hisChildren, have also dined with mcj andMr. and Mrs.Robt. Baldwin, and Mr. Rolj)!), Mr. and Mrs. Wasiiburn, and Mr. and Mrs. Clark, have once, or twice at the most, drank Tea with us, during my Residence in the Province ; antl that I also dined once, nnd drank Tea once or twice, with Mr. and Mrs. Washburn. The Evening after the Address was presented to ine, I was informed that a Petition had been agreed upon ; an official Copy of one of which, transmitted for Presentation to His Maiesty, signed by 1,756 Persons, has lately been for. v/arded to me from the Colonial Department. In that Spirit of Candour which 1 hope ever has and ever will characterize all my Proceedings, I append a Number of the Freeman of the 10th of July, and another of the iilst of August last, with reference to this Petition. I do not think, except in Court, that I ever conversed with Dr. Baldwin or Mr. Rolph a Dozen Times in my • =fe ; or with Mr, Bidwcll, or any other Person politically opposetl t; Mr. Robin; n, (for I never heard of any Opposition to the Government,) Half as often. I had almost forgotten to mention, that on all ordinary Occasions I usually wore a BUtc/i Velvet Coat and Waistcoat. Tiie first Time 1 saw the Chief Justice he had on a Black Kalimanco or Camlet Jac/cet, 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 beiield Mr. Justir .. Sherwood in a Grass-green Cloth Jacket with Wliite Metal Buttons. 1 merely mention these " Extravagancies" to shew that my Dress was neither improper or extracdinarv. With the Exceptions noticed in this plain Journal of Events, my Time was spent in the Bosom of my Family. I havo to apologise for the Prolixity of this Detail, and indeed for even submitting it to you ; but the Charges against nie are of such a Nature as to make Circuuistances otherwise trifling in themselves apparently of Importance. I have the Honour to be. Sir, The Kight Hon. the Secretary of State, Your most obedient Servant, Coloiiiul Department. JoHN WaLPOLE WlLLIS. T M»^«IM1< Al ^ IllcloslMf, Nil. ■"». Ucsoliitiuii oltlic IIoiisc ul Assembly roHpectihg Uciit t'ur tluf llospilul. 1{ksolv::u, Tliat it is necessary, in order tliat the Oieupiitioii of tlie liiiildinfj inuv not occasion Inconvenience to the "haritable Institution for whiwe Use it was intended iiat tlie Sum ot° i UX) aninially be grunted to the Trustees of the Hospital, tin the Use tliercoi'i the Payment to connnence from the Date of its Possession by the I egislature. Inclositre, NuAu Jixtract tioin the Observer Kcwspapcr, (U.C.) .5tli May 18''^ SoMi: of the Lov.er Canada Editors fancy, from the Bills of Ind . .neut hat were fi)und during th'" late Assizes, and the Altercation tiial occurred between ■lUilgc M'illis and the AUorney (icneral upon a Point of Practice, that we are. on tlic Verge of Rebellion ! IJut ihcir Apprclicnsion is rank Nonsenso ; there is no Danger of Commolion in this Provuice. Indeed the Majority of the Inhabitants are so wedded to British Principles, that all the Wealth of Kolhs- child could not sever them from hap|)y ' gland. We, as S|. ?ctators, were highly delightcil at the Altercation in Court, because le Purity of the Bench and the Independence of the Bar were arrayed one against the othar: and wo cannot but applaud the Judge and the Attorney <•", I i'^.. •!_ •„ 1- -i? , 1 'I'l .....I.: „P »l... i;;il ' General tor their dignified Language. 'Ihcre was nothing of the Village Lawyer in the Proceeding — nothing of the coarse, disgusting, Billingsgate, ])arlici:ns concerned were by the Influence of the Govern- ment screened from Punisbment, and tiiat his Loss was irreparable! Well, an Appeal was made to Judge Willis ; the Party was arraigned ; u.id to our Astonishment the Martyr was compelled to acknowledge, wlie:i sworn, that the Property dcstroyeil, and f()r which he had received }t2,.'5()<), was not worth .OO!!! It also appeared, that neither the Attorney (ieneral nor any Member of the (Jovernment knew any tiling; of the Matter until the Deed was done , and for this necessary Exposure the" Party prosecuted, the Government, and even the Country, ought to thank the .ludge. The Trial bar, closed tne Mouth of Mr. M'Kenzie on this Subject; his Designs, his Hypocrisy, his Defamation of Cliaractcr, and his Losses, are now laid i)efbre the Public'; ami tliev, no doubt, will decide upon them. r i) I lie f^l' ( «90 ) The Object of Law is not Punishment, bui Havrnony and Peace ; tlie Per- fection of it is the same ; and from what took place in our Presence we are satisfied that the Judge and the Attorney have tliat sacred Object in View. As the Courant's Remarks may induce Strangers to believe that the Judge has a poUtioal Bias, we give the following, being Part of his Address to the Jurv ' ""^ *' A Stranger in your Province, and uninfluenced (as I hope I always shall «' be) by any personal, party, or political Feeling, I can have no other Desire «' than that the Ends of Justice should be completely ansv/ered." 5 i Inclosure, No. 7- Extracts from the Canadian Freeman, 8tli May 1828. 2'ar Old Feather Outrage. Last Week, on Motion for a New Trial, this Case was argued before Judges Willis and Sherwood, in the Court of King's Bench. We have taken down the Proceedings, and will lay them before the Public us soon as possible. The Solicitor General, Advocate for the Rioters, argued against the granting of a New Trial, on Tuesday, for several Hours, and threw out more Flummery than we ever heard in a Court of Justice in the Course of our Lives — such Stuff, we think, as would not be listened to in England. After leading the Judge of Nisi Prius (Macaulay) into Error at Hamilton, he contended before the Court of King's Bench at York, that his Clients ought not to suffer a Second Trial from any Error on the Part of the Judge ! He argued that a Man not regularly sub- poenaed might be in Court, under the Eye of the Judge, and refuse to give Ev' 'ence, yet the Court had not the Power to commit him ! ! ! We suppose SUCH Doctrine was never heard in a Court of Justice before ; yet Mr. Boulton pledged his Honour and his: Professional Characte-- upon it ; and to iiis Pro- fessional Knowledge Judge Macaulay said, in oper. Court, he then bowed with Respect, as being superior to his own, and was still of the same Opinion ! How well qualified for a Seat on the Bench Mr. Macaulay must be, according to his own Confession ! Dr. Baldwin followed the Solicitor in favour of the Motion for a New Trial. He stigmatized the Tar and Feather Rioters as a " chosen " Band of Rufiians ;" and said, the " Impudence" of little Adjutant Gurnett, in the Court House, at the Trial, was most intolerable. He regretted that Messrs. M'Nabb and Chewitt, who stood accused, belonged to his Profession, as he viewed this to be one of the grossest Outrug':;> that ever stained the Annals of any Country. The Doctor spoke with Energy and Boldness, and was followed on the same Side by his Son, Robert Baldwin, Esq. The Judges did not give their Decisions till Saturday last, when Judge Willis decided in favour of a New Trial, and Judge Sherwood against it. It will be recollected that we expressed a favourable Opinion of Judge Sherwood on his being called to the King's Bench. We then thought he possessed Coolness and Impartiality ; but from his Decision in this Case, and from the many other Decisions in which, in the Course of a few Terms, we believe ho has differed oftener from his Brother Judges than did Lord Mansfield in the whole Course of his Life, we must confess i.at our Opinion of him has undergone a very material Change. We really cannot see upon what Grour.Js Judge Sherwood could refuse a New Trial" in this Case. As the Light begins to break in upon this Outrage, its Features become daily more hideous, and we think it is the Duty, not only of Judges, but of every Man in Society, to be aiding and abetting Mr, Rofph in bringing to condign and suitable Punishment the Monsters, whoever they may be, that could be guilty of such cold-blooded and audacious Villainy. It seems by the Judge's Notes, tiiat, together with the Outrage against his Person, a Robbery of Feathers was committed on Mr. G. Rolph. What would be the Consequence of such a Crime in Ireland before Lord Nor- bury ? We hesitate not to say, that it would bo janished by Death or Trans- portation. An Appeal, we understand, is to be made to his Excellency iu Council, ( m ) Council, anil we will tli ii have an Oppoilunily nf .seeing wlietlier Sir Peregrine Maitiand, who has pionioteil many of the Rioters, is, as Chief Magistrate in this Colony, disposed to check or encourage Vice and Immorality of the grossest Description. Judge Willis. A Man 'ivat-ncdis half armed. This is an old Adage which struck us forcihiy w hen Judge Willis was coming to this Colony ; and as he bore a high Character at Home, and that we expected this Colony to reap great Advantage from Iiis Appointment, we felt it a Duty we owed to the Learned Judge himself, and to the P'>ople who were to have the Benefit of his Services, to caution him against an official Faction, who have long lorded over the People of this Coiuitry, and persecuted their best Friends. We cited the Case of Judge Thorpe, and other eminent Men, who have fallen Victims to their Malice ; and if we are not mistaken, Judge Willis has already had ample Proofs of the Justice and Pro- priety of the Remarks we then made. If we are not mistaken and misinformed too, as vile a Conspiracy is now at work to ruin him as ever was afloat in the Colony. Judge Willis, by strict Justice and Impartiality, has endeared himself to the People ; and that is sufficient Cause tor the Enemies of the People to destroy him, if they can. But Judge Willis has nothing to fear; he has arrived in Upper Canada at a Time when the People and their Press have gained signal Advantages over the Power of Corruption ; and should the Attempt be made against him, both the People and their Press will do him Justice. The Editor of the Montreal Courant, in alluding to what occurred in our Court at the last Assizes, says, " Juilge Willis seems decidedly on the " Side of Mr. Collins." Judge Willis never spoke to Mr. Collins in his Life, except in the open Court, and could have no Bias in his Favour. But Judge W'iliis, being on the Side of Justice, was led, from the honest Conviction of his Mind, to do what he did ; and in his Address to the Jury, he explains himself in these Words : " A Stranger in your Province, and unintluenced (as I hope " I shall always be) by any personal, party, or political Feeling, I can have no " other Desire than that the Ends of Justice should be completely answered." Accordingly, in the Outrage for the Destruction of the Advocate Press, in which Mr. Collins was the Piosecutor, Judge Willis, after the Parties were convicted, fined them only One Dollar each. Some People were dis|)leased with this also, and thought that the Rioters ought to have been more severely punished. But Judge Willis, finding that Mr. W. Lyon M'Kenzie, who had received ^'2,500 Damages in a Civil Action against the Parties, swore on this Trial that he did not lose more than 850 worth of his Materials, said to the llioters, that, as he considered the Ends of Justice had already been amply satisfied, he would only fine them in One Dollar each. This was all very proper, and the Prosecutor was perfectly satisfied with it. Mr. Carey, of the York Observer, in allusion to the Altercation which took place between the Attorney General and Judge Willis in Court, says, " that " he viewed it as u Struggle between the Purity of the Bench and the Iiide- " peiulence of the Bar," and " applauds the Juilge and the Attorney (Jeueral " for their dignified Language." Now we applaud the Judge because his Language and Conduct was dignified ; but is the Freeman going to applaud the Attorney General for having the Insolence to tell the Judge that he knew liis Duty as well as any Judge on the Bench ? Is this what Mr. Carey calls " dignified Language ?" Was there ever such vulgar Insolence before offered by a start-up Pettifogger to a Judge on the King's Bench? What would become of this Utile York Attorney if he dared to use such Ins'-'ence to a Judge in England ? Would he not be imediately stript of his Gown and committed? No wonder that our little Attorney General so often threw out his Insolence to the popular Members of our Assembly, when he dared to reply in such a Way to a Judge on the King's Bench of the high Standing of Judge Willis. If he did not well know the Temper and Disposition of Sir Peregrine, he would never presume so far. But we hope Sir Peregrine will see that he has got enough of the Attorney and his Preceptor the venerable Archdeacon, and that he will dismiss them both, in toto, iioni his Councils. If not, we think the People of Upper Canada ought to take a broad constitutional Stand against the .\dministration of Sir Peregrine, 5 ■■;;; ii -s;|l ( 'i^f^ ) Peregrine, aiul petition the Home Government for his immediate Recall ; for so lonp as lie retains such Advisers, we consider it wholly impossible that the Colony can prosper as it would do nnder a wise and liheral Administration. The People of Lower Canada have long suffered in this Way ; but they at least took a firm Stand, and have succeeded in removing an Administration that was odious in their Sight. Let the People of Upper Canada follow their Example ; let Sir Peregrine go to the East with his Friend Dalhousie, and bring the Rev. Doctor Strachan and Jolm B. Robinson with him if he please. There will be many a dry Cheek in Upper Canada after them when they take theu- Departure. We publish in this Number Two important Transactions which have occurred in Upper Canada. 1st. The Proceedings of the House of Assembly, by which they established, that its Power to make effectual Enquiries into Subjects affecting the Public Interests shall not depend on the Will of any other Autho- rity, and therefore, that they will enforce Attendance before their Committees of any and every Person holding any Public Offices or Stations, without applying to the Executive for Permission. The Officers to whom this Rule has been applied, and who were imprisoned for Non-compliance, threaten an Action ; but the Country must feel, that if this Power is not supported, their Repre- sentatives would be unable to make any Investigations which the Executive might be disposed to render abortive, '^d. The Instance which Judge Willis has exhibited of a noble Independence and Eirmness of the Bench. The Attorney General, little accustomed to sucli Controul, lost himself in some Degree, and proved by his very Temper and Impatience the Necessity which long Indulgence had created for the Controul which he will be taught to feel. Such Conduct on the Bench will do more Service to the State than a Hundred Indictments. Judge Willis, we doubt not, an-eady understands how much the Happiness and Peace of the Province depends on having Public Officers unswayed by any Party Feelings or Provincial Antipathies and Rancours. He is a Gentleman well connected in England, and we trust will turn the Ex- perience he has already received to the Advantage of the Provinces. Can. Spectator. Inclosuro, No. S. Extract from the Observei- (U. C), FJth May 1828. A7//^''^v Bench, Upper Canada. — Final .Judgment of the Court in the Tar and Feather Outrage. George Rolph, Esq., Plaintiff; T. G. Simons, Hamilton, and Robertson, Esqrs., Defendants. Mr. Robert Baldwin, in reply to the Solicitor General, said the Plaintiflt' was entitled to a Reply. It is admitted that tlie Solicitor General urged to the Jury alleged Fact,') in his Defence, and called no Witnesses to prove those Facts ; in the last Edition of Archbold's Practice it is said, that in sncii a Case there is the Right of Reply ; which was refused the Plaintifl' at this Trial. It is reasonable, if the Defendant calls Witnesses to prove alleged I'acts, the Plaintiff may call Witnesses to disprove them ; and if the Defendant only possess those allegetl Facts in a Speecii, the Plaintiff should be allowed to repel those Facts in the same Way, viz., by a Speech. Regularly the Defen- dant should not by his Counsel declaim upon alleged Facts in his Defence, which Facts he knows he cannot prove; and if he will take that Course the only Check upon it is the Right of Reply. The next Ground is the Loss of Testimony. Andrew Stevens was subpoenaed, but he refused even to be sworn. He lefiised on the Ground that he could not give any Evidence but what svoukl crimiiiute himself. But how do we know it to be true ? Every Witness siiould be sworn ; and when the Question is put, the Judge will decide whether the Question ought to be answered. A Witness often states on Oath, from misunderstanding the Matter, that he is interested, and on that Ground claims Exemption from giving Evidence ; but tlie Interest so averred, e^en under Oath, is not taken for granted ; the parti- cular f Nisi Prius, and that no Attachment can lawfully issue against him, and that no Action will lie for the Recovery of Damages on such Refusal. The Laches of the Plaintiff in not procuring his Witnesses should never have the Efiect of placing at his Option the Repudiation or Retention of his own Verdict, especially where one of the Defendants has a Verdict of Acquittal. When the Plaintiff discovers that the Evidence which he has in his Power to give at the Trial is not sufficient to sustain his Action so well as he would wish, I think he should lake a Nonsuit, conformably to the Case before cited from Cowper, 845. If he elects to proceed on the Evidence adduced at the Trial in Proof of a joint Trespass, as this is, and one of the Defendants be acquitted, ( v."J7 ) ;ic(iiiitti'il, as in the Caseliero, lie cannot, in my Opinion, obtain a New Trial on the (irouiul alone ot the llet'iisal of Witnesses to give Kviilence ; and this Doctrine, I think, is in Principle recognized in the Case of Sir Charles IJarington, reported in 31. Salk. 36'2., I'arker et al. r. Godin, '2 Stran. 814., and Norris f. Tyler, Cowper, 37., Markhain i. Mid. St. 1259. These Cases prove, that a Co-detLMidant against whom a Verdict has been rendered altogether contrary to Evidence cannot have a New Trial when One Defendant is acquitted ; and it appears to me, that a Plaintirt" wlio docs not pretend the Verdict to be against 'ividence has still less Claim to a New Trial. In the present Case the I'laintitt'has filed no Affidavit to shew that he himself believes the Witnesses who refused to be sworji could give any niaterial Testimony in his Favour against the Defendant who was acquitted, or against either of the other Defendants ; nor can this Fact, in my Opinion, be inferred by the Court from the Judge's Nott^s, which merely state the llefiisal of the Witnesses to be sworn, and the Opinion of the Judge, that they ought to be sworn, although they alleged themselves Accomplices. The Plaintiff's Conduct is altogether unaccountable to me, if he really had a serious Intention of applying to this Court for a New Trial ul the Time he sought a Verdict from the Jury ; and if he had no such Iiiteiition, it appears to me he could not have considered the Evidence of the Witnesses who reliised to be sworn very material to his Case ; at all Events, he must have thought he had sufficient Evidence to obtain sucli Damages as his Case merited, or he would not liave gone on with the Trial, Upon Consideration, therefore, of the whole Matter, I am of Opinion, that the Plaintiff" is not entitled to a New Trial on the Second Ground. This is my View of the present Case ; and I have no Hesitation in saying, that, if the Law of the Country would allow of the granting of a New Trial consistently with adjudged Cases and tlie Rules established by the Superior Courts in the Mother Country, I should feel a Satisfaction in finding the Measure conipatible with what I believe to be my Duty, because I have no doubt that the Trespass committed on the Plaintiff was both gross and flagrant, embracing private Wrong and public Outrage. It is the Duty of a Judge on the Bench, however, to consider the legal Rights of both Parties ; and while he feels au honest Indignation at the Licentiousness of Aggression, he ought not to allow his Feelings to carry him beyond the proper Limits ; for he sits to execute, and not to make Laws ; and his Mind hould be uninfluenced by any other Motive than that of Justice, sanctioned by Law. Judge ff'il/is.—The Facts of this Case are simply these. A gross Outrage was committed on the Person of the PlaintifJ", for which he brought this Action against the Defendants. In order to support tiie Plaiiitift"'s Case, Mr. Alex- ander Stevens, Mr. Allan M'Nab, an Attorney of this Court and one of the Counsel employed for tiie Defendants, Mr. Cliewett, also an Attorney of this Court, and a Mr. Gurnett, were called upon to give Testimony ; but they refused even to be sworn in tlie usual Manner, stating as a Reason, that they could give no Evidence in the Matter but what might tend to criminate themselves ; and Mr. M'Nab and Mr. Chcwett further endeavoured to shelter themselves from being Witnesses, on the Ground of being professionally con- cerned for the Parties. The Learned Gentleman who tried the Cause was about to commit these Gentlemen for their Contumacy in refusing to be sworn ; but he diil not do so, as the Parties, if guilty of Contempt, might be punished on Application to this Court. Under these Circumstances, and because tlie Counsel for the Plaintiff was refused the Reply which he had claimed to be entitled to, the Defendants' Counsel, although he introduceu no Evidence, having introtiuced new Matter, a Rule Nisi for a New Trial has been obtained j and it is now for the Court to say whether that Rule shall or shall not be made absolute. The Solicitor General, in shewing Cause against the Rule, as I understood him, began by stating that this was an Aggression against the Public Peace, and a fit Subject for a Criminal Prosecution. In this I entirely agree with him ; and I only regret that he, as the only Law Officer of the Crown on the Circuit 4 F where ( '.'08 ) , where tin- Offonce was committcil, and who tlicrcforc, as I am informed, acconUnj^to the present I'racticc, was entitled to the exchisivc Trivilege «t being employed in all Criminal Prosecntions, should, by defending those who were charged with the Outrage, have possibly prevented an earlier Appeal to those Laws which have been made tor the Protection and Peace not only of Individuals but of the Community. It is a favourite Maxim in the Mother Country that an Englislniian's Houie is his Cit-tlo ; and I trust that tridy Knglish Feeling will never be lost sight of in a British Colony. Uut when the OHicer whose Duty it is to enforce Obedience to the Law appears in a Civil Action to defend those who have transgressed it, Lord Coke's Axiom, «' Oderunt pec- »' cnre formidinc pcenae," holds good no longer. For how, I would ask, can those whose Conduct is defended by the Public Prosecutor, although merely in a Civil Action, stand in awe of Public Punishment for that very Conduct ? It was objected, in the f^rst place, against this Rule for a New Trial being made absolute, that what it is supposed the Witnesses who refused to be sworn and examined could have proved, anil its Materiality to the Issue, should have been shewn to the Court by Affidavit. Now as to this the Law staikds thus : " If the Matter be such as did not or could not appear to the Judge at Nisi " Paius, it is declared to the Court by Affidavit ; but if it arise at the Trial, it " is taken from the Judge's Notes, who usually makes a special and minute •' Report of what occurred." (.S B. C. Com. 91 ■) From the Notes in this Case it clearly appears that the Persons refusing to be examined had some Knowledge of the Transaction, as they only excuse them- selves from giving Testimony from the Fear of implicating themselves. Two of the Witnesses indeed also superadd the Excse of professional Confidence. But it is evident there might havi been many material Questions asked which would not have criminated the Witnesses, and in respect to Facts unconnected with and before the professional Relation subsisted. No Affidavit in this Case is, in my Opinion, necessary. It was then objected, that the Plaintiff, to qualify himself to move for a New Trial, snould have elected to be nonsuited. Without adverting to the Consequences of a Nonsuit, which in a Case like this would only have afforded the Witnesses another Opportunity of refusing to be sworn at a future Trial, I shall only say, the Refusal on the Part of the Plaintiff' to be nonsuited has been determined to be no Bar to a New Trial. But where a Plaintiff' refuses to be nonsuited, contrary to the Opinion of the Judge, (which was not the Case here, for there does not appear the slightest Inti- mation to the Plaintiff" at the Trial of the Propriety of such a Course being adopted by him,) the New Trial shall be without Costs. It was then urged that this was a Motion for a New Trial, on account of the small Damages given by the Jury, and that the Court would not in general entertain such an Application. I consider it as made on an entirely different Ground a Ground whicii may indeed affect the Damages, but which is totally distinct from an Application solely because the Damages were small. I con- sider this an Application founded on the F'act, that Evidence sought to be adduced on the Be' alf of the Plaintiff' was improperly suppressed. It was then said, as one of the Defendants was acquitted, and the Verdict only against the other Two, no New Trial could begr.nnted. To obtain a Rule for a New Trial in Civil Actions, at the Instance of the Defendants, it is in general required tiiat all must join in the Motion, though there has been a Venlict only against some of them ; and if all must join when the Solicitation is on the Part of the Defendants, what Reason is there, in a Civil Action, why all should not be joined when the Plaintiff' makes the A])pli- cation? In regard to a New Trial it has been determined, that notwithstanding Evidence has been given on the Part of the Defendant, and he has obtained a Verdict, the Plaintiff may still en reasonable Gro.uid have a New Trial. Defei of no Civ If then a Plaintiff" may have this Remedy even against a Verdict for the jfendant, it seems to follow, that where tho Plaintiff' himself is in Possession the Verdict, which he waives for the Purpose of a New Trial, there can be Reason why it should not be granted as to all those who were Parties to a _..il Action, whether found guilty or acquitted, for the Waiver of the Verdict puts them all on the same Footing. I have been speaking hitherto of Civil Cases. In ( iw ) In IViml .Action-, and in Ciinin..,! I'rosoi iiIidiis tor Misili-ino.iniin, the Law, anxiously distinguishing thoin troni purely Civil Suits, on account of the great Favour which it shews to the Liberty of the Subject, has provided that there shall not be a New Trial where there has been a Veriliet for the Delendant. Ami in Misilemeanors, where the hnhctnient is against several Dett'iidants, and some are acquitted and otiiers convicted, the Court, contrary to the Wide in Civil Actions, may gniiit a New Trial as to tho'.) And in such Case it has been holdeii, that the Court is not fettered with any Rules in granting a New Trial, but will either grant or reJuse it as may best tend to the Advancement of Justice. (H. Cum.) Such then anpcars to me to be the true Docirine in regard to granting New Trials, even after the Evidence has been fully gone into, if it a|)pear that it should have been a dirt'erenl Con- clusion. In this Case, however, I am satisfied tiuit there are strong probable Grounils to suppose that the Merits have not been fiilly and fairly discussed, and that the Decision cannot therefore be conclusive as to the Justice and Truth of the Case. The Evidence liitherto suppressed may establish a Case againsi the Defendant Robertson ; it may give tlie Jurv Reason to award the I'laintilf greater Satis- faction for his Wrongs. Should it not do so, tlie Plaintiff; who takes the New Trial at his own Hazard, must pay the I'enalty of his Rasluicss. But it was said the Plaintitfought to have come prepared with his Testimony; and I admit that a Party will not be relieved on account of the Waiit of that Evidence, wliich, with proper Diligence, he might have procured at the Trial. And this brings me to tiiat Part of the Case which seems to have been con- sidcred in the Argument as the most impoitant. Of those called upon to give Testimony, Two (Mr. Chcwett and Mr. M'Nab) were Attorneys of the Court; the former employed as an Attorney, the latter as a Barrister, for the Defendants in this Cause. They were called upon by the Court to be sworn to give such Evidence as they were able, without criminating themselves, or betraying professiupal Confidence. How far any Questions th^v might be asked would iiave such a Tendency, it was for the Court and not for them to determine. They did not object to give Evidence because they had not been served with Process for that Purpose; nor did Mr. Stevens then object, as he now does, to the Irregularity of the Subpa'na; so far from it, indeed, he wished to be sworn, but in a qnalified Manner. Neither did Mr. Gurnett object to give his Testimony, because h > had not been duly summoned. With reganl to Mr. Chewett and Mr. M'Nab, I am of Opinion, that as Attorneys of the Court, they were guilty of Contempt in refusing to obey its Injunctions; and I think Mr. Stevens wan also contumacious, even supposing the Service of the Subpoena to have been irregular. Appearing, and not objecting to the Want or alleged Irregularity of the Process, in my Opinion, cured the Defect with respect to Chewett, il'Nab, and Stevens, whatever may have been the Case as to Gurnett. Thus, in the Case in Cooper's Reports, cited in the Argument, Lord Mansfield asserted the Authority of the Court in compelling an Attorney to give Evidence, though the Attorney alleged that the Process with which he was served for that Purpose was irregular ; and even con- sidering Mr. M'Nab as a Barrister only, and not an Attorney, it seems clear that notwithstanding Ikrristers, as such, are not Officers of the Court, but merely practise as Counsellors, yet inasmuch as they liave a special Privilege to practise the Law, and their Misbehaviour tends to bring Disgrace upon the I^w itself, they are amenable to the Court as other Ministers of Justice are. (2 Hawk. i^iy. and References.) Respecting the Waiver of the Irregularity of the Subpoena by Stevens, if in fact any Irregularity existed, I shall mendy refer to the Case of Harris v. Mullet, 1 Taunt. .58., in which it was held, that where a Defendant was summoned to appear before the King's Justices at Westminster on the Morrow of Saint (without naming the Saint;, to answer the Plaintiff in a Plea of Trespass, the Defendant not liaving appeared, Two Writs of Distringas successively issued, and Execution was levied. When the Sherifl["'s Officer called to execute the first Writ, the Defendant informed him he had sent his Wife to Town to settle t!ie Action. Although it was urged that this was not en Irregularity, but a Defect of Process, and therefore could m ^^m ( 300 ) not l)f nircil, yit tlit: Cloint liul'l tlie DeluiiiliUil had waiveil it ; anil there arc numerous other Instances wliere the Detect or Irregularity of Irocess has been waived by Appearance. lam inchneil to tliink that CJurnett also by bis Comhict waived tlie Necessity of the previous Service of a Subpdna ; but on this I give no Opinion. Had the Question merely depeiuLii on the Power of the Court to eutorce those in its Presence (not properly subpa-naed) to give Kvidence, 1 should have considered myself bound by the Authority of Howies »•. .Johnson, 1 Sir \V. Ulackstone's Ilep. 30., and decided that the Court bad no such Power. It is there said, " A Person not properly subpoenaed is to l)c looktil upon as a Stander-by ; and " it is no Contempt of the Court of Nisi J'rius for a Stander-by to refuse to be " examineil, much less of this Court of King's Iknch." Of the Power of the Judge of Assize to tint and imprison for Contempts committed in his Presence there, I have no doubt ; but, like all other Powers, it is to be exercised with Discretion ; and I think it due to the Learned Gentleman whc tried the Cause to ,iy, that in my Opinion he exercised a very sound Discretion on tlie Occasion. The Liberty of the Subject shoidd always, as has been the Case here, be resjiected, as far as it possibly can be, without obstructing tlie due Course of .lustice. Next to doing right, says Sir W. Blackstonc, the great Object in the Administration of Justice should be to give Public Satisfaction. If a Verdict be liable to many Objections and Doubts (and, I may add, if Evidence be withheld which might serve to strengthen the Verdict, and bring the Matter home to all the Parties against whom the Charge is brought,) in the Minds of his Counsel, or even of the By-standers, no Party woukl go away satisfied, unless he had a Prospect of reviewing it ; such Doubts, such Sup- pression, would with him be decisive. He would arraign the Determination as manifestly unjust, and abhor a Tribunal which he imagined had done him an Injury without the Possibility of Redress. Granting a New Trial cures all these Inconveniences ; and if ever there were a Case that called for one, I think it is the present. In regard to the Reply, from the Case of the King v. Biguold, cited in Archbold, (I have Notes of that Case is it occurred at Nisi Prius, and afterwards in the Court above on this Point, although I have not the Case itself,) and also upon Principle, I think the Plaintiff's Counsel was clearly entitled to it ; but I will not say that I consider it so important that I would grant a New Trial on that Ground alone. In forming my Opinion in this Cause, which I have now given at very con- siderable Length, I have viewed the Case, as I hope I shall do every Case that comes before me, solely with ref^'rence to its intrinsic Merits. Totally devoid of all personal, all party, and all political Feeling, it lias been, and ever will be, my earnest Desire to render to every one impartial Justice. My Conduct has not, however, been so construed ; and of late the Slanderers and the Ilevilers, like the venomoi^s Reptile of the Country, although for- tunately heedless oflhcir Rattle, by which they may be traced, have put forth their poisoned Tongues ! But, '• Jusium et teniieem propositi viriiin Non ardor L'iviiiin pravajiibeiiliuiii, Nun vulliis in>tuiilis rtl to explain his Conduct. I was retained in the Civil Action ; and a Civil Action does not necessarily involve a Criminal Prosecution. I coidd not foresee it. I was retaiued in the Civil Suit before the Assizes ; and it was no Part of my Duty to hunt up whether Criminal Proceedings would take place. Such has been my Practice since I held His Majesty's Commission ; and such shall always be my Practice while I continue to do so. I have been acting as His Majesty's Solicitor General for Ten Years. If I am wrong, I suppose I shall not hold that Situation much longer ; and in that Case, perhaps, the shorter the Time the better. It { -Joi ) It is not ii Part of my Duty ti» liunf np Cases. Tlic I'ulilu' I'rosocutor is known in this Province to receive Fay for lii . Services •, and if I were to go about hu.Uinj^ Prosecutions, I shoulit be charj^ed with doing it for tlie Purposes of Hitliy Lucre. Tlie Plaintiff made no Attempt to engage me on his Side before the Action was broiglit, although my Services were equally within the Jleach of hotli Parties ; and the Plaintiff must have known the first that he was going to bring his Action. Had I been officious, it might have been said (and there were plenty of Persons who would be ready to put the worst Con- struction on my Concmct), that I did it to injure the Civil Action which wa« pending, and to lessen the Damages. Judge Willis. — When a Public Prosecutor is retained to defend the Civil Injury, it must deter the Person against whom he has actei', from applying to him ; it is the natural Consequence. Judge Shcrivood. — The Party injured had Redress without the Aid of the Solicitor. He might apply to the Grand Jur;,, or to the Judge, oi to a Magistrate. I should be sorry to have it said that there was no Road to Jus- tice but through the Crown Officers. The Grand Jury, if they had been applied to, would have found a Dill, and the Court woulif see that it was pro- ccedcd in properly ; and the Solicitor, I am sure, woidd have done his Duty. If he did not, the Court would have taken care that the Case did not suffer by the Want of his Exertions. Mr. Reporter Tajjlor, — /. ^ Amicus Curios, I was present at the Assizes in Salisbury when a Case of C. oital T'elony was tried ; it was conducted without any Counsel on either Side, and I never saw a Case managed more regularly. The Judge examined the Witnesses and charged the Jury. T/ie Solicitor General. — To be sure, my Lord. Such Cases arc very common, and I think they get on just as well without Counsel as with them. Judge Willis. — Undoubtedly he may so prefer his Complaint before the Grand Jury or a Magistrate j but who is to comluct tlie Prosecution for hjm ? Who is to draw the Indictment? Who is to summon the Witnesses and arrange the Evidence? From the Nature of the human Mind it cannot be u Civil Action in a Trespass lor abating u Nuisance; and the next Day proceeded a^ainit the same I'hiintitffor a Public Nuisance, and convicted him. At tho Trial very unhandsome Suspicions wore thrown out. Mr. /iolj)/i.—Thi Observations made by the Solicitor .'eneral as to any Suspicions intimated at the Trial, ajipear to me, after all that passed, worse than unnecessary. In the Nuisance Case mcntioncJ, the Attorney General in the Prosecution manifested a Zeal which I may say, without giving hini Oll'cnce, was the greater from the Stimulus afforded by the Suspicion that his Energy might be paralysed by being retained in the Civil Action. I wish the Court to understand that I nu Je the Application at Nisi Prius fir; the sum- mary Punishii'.ent of the Persons who had seduced the Witness from the Court House. Besides Mr. Halt, ii Witness of the Name of Holly, who had been Hubpcenaed, was bribed to leave the Assizes ; and ho did not appear when called to give bis Evidence. It appeared upon the Affidavits that Andrew I latt was subpanaed, and was Twice in the Act of obeying tlie ( ',di of the Court , when Mr. Chewett, the Attorney in the Cause, (sitting at the lligiit Hand of the Solicitor General iluriiig the Trial,) prevailed upon the Witness to ubscond. The presiding Jiulge, the lion. J. H. Macauiay, refiiscd the Application ; and upon that Refusal I certainly should have taken other Steps, however hopeless of due Relief: buL ♦'ic Learned Judge took the Matter out of my Hands, and himself delivered t!ie Papers to the Solicitor (ieneral, and in making that Choice he acted wisely, as I can have no Pretensions to a Knowledge of Criminal Law, or Experience in Criminal Proceedings. These AHidavits, witii tlie Instructions of the Judge to proceed criminally, have been ever since hidden in the Custody of the Solicitor General, the Public Prosecutor. Why has not an Application been made against the Attorneys of this Court for such Mal- practice ? Tiiat is alone in the Breast of the Solicitor Gciu lai, the Public Prosecutor, the ^ery Public Prosecutor who ims t .erted himself with so much Zeal for th .■ I'ei niis ^niilty of tho Outrage. Perhaps I niiglif have goaded him to make the Api'lication before this Case was argued ; but never shall thatLeanvi! C-.', t'tii ,1, as a "ubi.L Prosecutor, while tolerateJ. in the Disciiarge of these coiillic.iug Duties, Iiave it in his Power to say that I obliged him to take a Course prejudicial to any Civil Suit in wliicii he has embarked. The Solicitor General might have proceeded voluntarii\ \\n\ with the Rigour called for by Conduct striking at the very Roots of Ju . Hut after the Learned Solicitor General has again, by a Division of the i vuirt, deflsatcd tho Plaintiff' in the Justice he sought for, then he slips the Affitlavits into the Hands of the Attorney General, who received them Yesterday ; and the Judgment of tho Court having been thus obtained, the Attorney General will make the Application (I understand) To-day, never having belore had any Knowledge of their Existence. I apply for Justice in one Way, and I am told that is the w )ng (bourse. I shape my Course accor '.ngly, and seek for Justice with the like Success. In Truth I cannot find it at all. The Solicitor General lias made a generous Profession of his Public Services ; but I now tell him, that after the Part be has acted in this disgraceful Transaction, he shall never, with my Consent, be intrusted with the JVIimagement of it. If the Defendants should traverse next Assizes, and at the Assizes following the Solicitor General should present himself as the Manager of the Prosecution, I would press the Advice of Postponement even for Ten Years, yea, for ever, and let the Cul- prits escape. And this Feeling I believe Nine Men out of Ten woultl par- ticipate. In a case of outrageous Injury I find the Witnesses I have subpfjonaed seducetl from tha Court by the Attorneys of the adverse Party, associated with the Solicitor General, and no Protection is icured against it by a speedy Punish- ment. And when once thus deprived of the Testimony of the Witnesses I have siibprt'iiaed. 1 seek it from those around the Court, I am told I cannot ilive ( sm ) tlivc into the Aiiilii-ncc tin tlu- Kviilciici! I i.ciil. U'lien tlius stiippcil of my Kvitleiui', and ileft-ati'il liy uiiliur riacticcs in the Pursuit ol Jusiiico, I uin told (notwitlistandinj? tlio AsMiranccs ot the Jiulge ut Nisi i'rius.) that I simll not have a Now Trial. This I saj^ is a Denial of Justice. T/ic Allunwj/ General. — 'li.j Learned (icntlcman docs iii' but Justice in saying' that I conducted that Prosecution with Zeal ; but he ..s mistaken in stating that I knew oi theCommumcation to the t'hiel Justice who tneJ the Cause 'till the Prosecution wns over, when the Contents were publicly cummu* nicated to nie. Mr. Ritlpli. — The Lewncd (lentlcnian is somewhaf mistaken. It is true ho did not know the Contents; but, upon Uecollection, ho will find that enouuh was intimated to him before the Trial. .htJgc Sherut)()(l. — \\'\\\\. are theso Allidnvits :> I iic\er heard of them bclbre. Wen. they read or mentioned when this Application was made ? Wiiere are they ? I do not rememhtr them. Mr. liaUhviii. — My Lord, I mentioned the Substance of them when I argued the Afatter of this Application ; and stated that the Affidavits were in the Hands of the Solicitor (ieneral. Jit(/rs to the Tar and Feather Scrape. — In reply to the Remarks of Mr. Colhns. we do assert, that it is "ot insolent in a Barmter to tell the Court that he knows his Duty as well as any Judge on the Bench. It however, such Language be insolent, then we say, that the Courts of Kngland and Ireland teem with such Insolence. " The Chronicle " has been very severe upon the old Lady ; and so 'o"g ^^ he castigates the Members, so long shall he be entitled to «";• ^f^^^^'.. f "^^J ^^ Editor has entered upon a Subject that ouglit not, on account of the larties interested, to be revived ; he has touched upon the late unhappy Proceedings and in do ng so he has thrown out uncalled-for and unjust Insinuations against aiiu "»"""fa ^, _ ,_ ,, , ^ ,i;a^,.„,l ,„,.rn wirolv than those TonlicieTnov arraigned; there was nothing against the Party but the mere Accusation of the Grand Jurors, and which Accusation was not read in his ^°lftf Sws of the Midland District should prefer an Accusation aeainst the Chronicle for his late Strictures upon our necessary Ifouse ot Assembly, would the Judge act wrong were he to recommend before irial and Conviction an harmonious Course ?— We say no. Inclosure, No. 9. Extracts from the Gore Gazette of 17th May 1828. M^ Wn'usVn his Judgment in the - ase of Rolph v. Simons et ai. on the Subect of the New Trial which was applied for by the Phunt.l, says " m "regard to a New Trial, it has been determined, that notwithstanding Evidence " hafbeen given on the Part of the Defendant, and he has obtained a Verdict, .. the Plaintiff may still, on reasonabh Grounds, have a New Inol. What does the Learned Judge mean l,y » reasonable Grounds? Does he intend o ay that he can producea Case in all tlie Books of a New Trial )e.ng eranted merely because a Witness whom the Plaintiff subpoenaed refused lo be fworn? If he can shew such a Case, 1 will venture to say it was never dec.a.d i^Enirland. Or does lie mean by " reasonable Grounds," tiie crude and whim- sical Notions of an Individual, unsanctioned by former Decisions ? i. the latter be the Case, nobody could ever meet him on legal Grounds, because a Person undei such Circumstances is not tangible ; he is m no Latitude or Longitude heretofore visited by any Gentleman of the Long Robe. As the Sailor would ay .' he is out at Sea without a Compass." Let the Learned Judge point out a single solitary Instance in England where a New fria has been granted to a Plaintiff who has obtained p. Verdict against 5o«ie of the Defendants in a Joint Action of Tort, where one has been ..cquilted, and I will tlien admit that he is truly wise, and that I am shamefully Ignorant I will go still *"'the. let the Learned Judge shew a single Case where a New Trial was ever granted to a Pla'ntitf in an Action of Tort, merely because a Witness refused to be s.^rn or refused to attend, and I will give up the Point. In 'i Salk. ^■^'^- YZ Trial was applied for by the Defendant, because the Irial came on at Seven o'clock in the Morning, and an old Witness could not rise to be there in lime ; but it was denied, unless an Affidavit should be made, to shew the lestiniony to be material. So strict are the Courts when a Defendant applies for a New X 1 Kll ) { 30J ) Trial- but the Plaintiff is never obliged to proceed wit ii tiie Trial, wiien he finds that his Witnesses liiil him. He may always be nonsuited, ami begin anew whenever he thinks proper; and therefore it is entirely his own I-ault il he coes on with the Trial, and afterwards is disappointed at the Result. The Learned Judge also says, " without adverting to the Consequences ol " a Nonsuit, which in a Case like this would only have afforded the Witnesses « another Opportunity of refusing to be sworn at a future Trial, &c. Mr Willis thinks, if the Plaintiff were nonsuited and had brought another Aciion, the Witnesses wight again refuse to he sworn am I would like to know If thev could not do the same on a New Trial? What Difference could there possibly be in this Particular in the Two Cases? Any Person ot common Sense would at once say none; but Mr. Willis insinuates that there uouUi be a 'MessTchewett and M'Nabb,Two Attornies of the Court of King's Iknch, were present at the Trial, but were never subpcenaed, and tl"^y .'f ^^''l J^ ";;; sworn when called upon to give Evidence. Mr. Willis says, W ith regard to « Messrs. Chewett and M'Nabb, I am of Opinion, that as Attornies of the '< Court they were guilty of Contempt in refusing to obey its Injunctions. This is 'the Opinion of kr. Willis ; but I would like to know upon what Authority he forms that OpiKion, because I am a Man who always require, for my Satisfaction, that a Judge should either state his Authority for an Opm.on, or deduce the same logically from soms known and acknowledged I rinciples ; neither of which is done here. It happens, unfortunate y for the Learned Judge, that immediately afterwards he fully recognizes the Doctrine of tiic Casi of Bo7iles v. Johnson, when it was determined by the Court ot King s Bench in England, that " a Person not subpoenaed must Iw loo Iced upon as a " Stander.bu, and that it is no Contempt of the Court Jor a Stander-by to refuse .< to be examined." This Decision of the Court does not except Attornies Solicitors, Clerks, or Sheriffs ; but it says, in general and broad Terms, that "a Person not subpoenaed is a Stander-by," and that "a btander-by is not " obliged to be sworn." Such a Person may be examined as a W itness, if he is willing, but he cannot be compelled to do so unless he is subpoenaed. Now why is !n Attorney to be put in a worse Situation than any other Person? I have often heard that Attornies were privileged, in many Cases, rom giving Testimony ; but I never dreamt that they were deprived of the common Privilege, which all others of His Majesty's Subjects confessedly enjoy, of not giving Evidence without being called upon by the King's Writ to do so. When an ordinary Person is subpoenaed to give Evidence, he must lor the Sake of Public Justice, divulge the Secrets of his nearest and dearest I- riend, however painful to his Feelings ; but if he is not subpoenaed he need not do 0. An Attorney, however, according to Mr Wdhs's Opinion can be obl^ed to do so whether he is subpoenaed or not! O temporal O mores I Tins Sver was ^h Case in Old ingland ; why should it be in Upper Canada? If an Attorney, who attends a Court of Justice on the Business of l"s Clients, could be obliged by any Suitor in Court to become a Witness against his Will. aS withou beinj commanded by the King's Writ, his Situation would be more^oublesome than that of a W^aiter at an Inn and almost as degradmg ; r would soon be called a standing common drudge Witne«., I don't know how this Doctrine will suit the Gentlemen Attornies in gener, -ut for my own Part I must ingenuously own, that I consider it altogether .pocryphal and so completely subversive of the Liberty of the Subject and the Respectability of the Bar, that I am quite astonished it should take its Origin from a Judge who profe ses an intimite Knowledge of the Common Law, and an uncommon Anxiety for the Privileges of the Subject. His proposed View of the Jur.s^ prudence of Upper Canada will most probably explain all hese riungs, and SerEs convince every body in every Part of the World that, in truth and P f,T Attornies are nothing more nor less than constitutionally standing WitSetS ough to sprang into tie Witness Box at the Beck of both wSff and Defendant. It will be in vain for the unfortunate L«/»ta^ to say Sa if knots no^^^^^^^^ the Matter, for who will believe him 'tdl he is s' -orn in th s Way all the Attornies in Court might be literally pumped, which would cerSly be extremely convenient for Suitors because, when hard run t., T^sUmony. they might put the whole Tnbe of Lawyers in requisition, withuu m ( 30() ) Exnencc or luiicfi Troiiblo ; and if those failed, all the Constables \vo\dd be called, because, as Officers of the Court, they would be equally liable with the Attornics. No Subpoena is necessary for these Fellows ; they are obliged to tell all they know, without any Notice or Iteward, and must, every Mother's Son of them, turn out in Rank and File, and swear through thick and thin, or they will be committed for Contempt. The Learned Judge further says, " If all (the Defendants) must join when " the Solicitation is on the Part of the Defendant, what Reason is there in a " Civil Action, why all should not fe joined when the Flm7ttiJ/' makes the Ap- " plication ?" I will tell Mr. Willis the Reason, since he asks for Information. When the Defendants are prosecuted for a Misdemeanor on an Indictment at the Suit of the King for an Assault and Hattery, and they happen to be ac- quitted against the Judge's Charge, the whole Weight of the Evidence, and the Opinion of every body else not on the Jury, still a New Trial cannot be granted conformably to the Rules of English Law. When a Civil Action is since that Time, on the same Principle of that Case ; and if he dispassionately forms his Ojjinion on these English Authorities, he will not find it necessary in future to ask a Question like the above. Mr. Justice Willis again says, " Totally devoid of all personal, all party, and " all political Feeling, it has and ever will be my Desire to render to every " one impartial Justice." Now I do not see the Necessity of all this. Did any one ever accuse Mr. A\'illis of being a Demagogue, or an intimate Acquaintance and familiar Associate of any Demagogues either in or out of the late House of Assembly ? Did any one ever think that Mr. Willis is beat- ing the Democrat Drum, or that he wishes to make himself popular by an uncommon Show of Anxiety for the Rights and Liberties of the People ? Did anyone ever imagine that M.. Willis could suppose that the People of this Count) 1/ could long he gulled with the loxv and drivelling Arts of a Buffoon J Can he suppose that People suspect him ? If not, why does he deny that of which he has not yet been accused? When a Lady asserts her Virtue — a Clergy- man his Piety — a Miller his Honesty — a Physician his Skill — or a Judge his Impartiality — without first being accused of the contrary " Feelings," MauKind are too apt to suspect that there may be " something rotten in the State of " Denmark." I intend, Mr. Editor, to trouble you with One more Epistle on this Subject, for I find it impossible to produce his Lordship as large as Life without the additional Part to make up the Picture. I shall then wait for a Reply before I again intrude upon your Patience. A Stander-by. Sir, As Mr. Justice Willis has lately taken upon himself to condemn, in no very measured Terms, (and without, apparently, possessing any Information upon the Subject,) the Mode of conducting Public Prosecutions in this Province, through the Medium of His Majesty's Attorney and Solicitor General ; and without conferring either with them or his Rrother Judges, as I have heard — which would have been no more than becoming in a Person of so little Expe- rience and has presumed to recommend to a Committee of the last Session of the House of Assembly the Abolition of a Practice coeval with the first Organization of the Government of this Colony, and the Introduction of an entirely difl'erent System (vide the Report of Mr. Justice Willis, relative to the EstabHshment of an equitable Jurisdiction in Upper Canada, published by Order of the House of Assembly) ; I hope I may be permitted merely to express my entire Accordarice with the Sentiments publicly delivered by the Right Honour- able Robert Peel, the present Secretary of State for the Home Department, when filling the same Office during Lord Liverpool's Administration, in the Ihitish House of Commons, in the recent Discussions respecting the Improve- ment of the Administration of the Criminal Law of England ; and which, I have no doubt, will be repeated by that Right Honourable Gentleman, should the threatened Appeal of Mr. Justice Willis to His Majesty's Government have the Ill-luck to come under his Notice. nt ( ;«)7 ) In Ins Speech of the 9th oi March IH-iii he said, '■ If we were legislating " (lenoiv, withont Reference to Customs and formed Hahits, 1 for one shonhl '• not hesitate to relieve private Individuals from the Ciiarge of Prosecution in «' the Case of Criminal Offences, justly called, by Writers upon Law, Pidilic " Wrongs. I would have a I'uhlit Prosecutor, acting in each Case on I'rin- " ciple, and not on the fieatetl and vindictive Feelings of the in.dividnal Snfi'erer, *' on which we mainly rely at present for the due Execution of Justice. Such " Feelings are rarely the fit Measure of the Propriety of Prosecution. They " are apt on the one Side to over-rate the Wrong connnitted ; on the other, " still more apt to subside afler the first Impulse of Revenge ; and, coupled «« with the just Fear of Trouble and Expence, to lead to disgraceful Com- «' promises, in which the Interests of Justice are altogether overlooked. I " would therefore make the Prosecution of these Public Wrongs nnich more " a Matter of Public Concern than it is at present. I would (taking, at the " same Time, all proper Security against the Encoinagement of undue Liti '« gation,) indemnify Parties more liberally from the jirecarious Charge whicl " the Trial of a Public Offender entails ; and I would, by the Appouitmen " of a Public Prosecutor, guard against iwdicioiis or Jrivoloiis Prosecutions on " tlae one hand, and on the other I would ensure I'rosecution in Cases in " which Justice might require it. In Scotland, Crimes are prosecuted in this " Manner, through the Agency of a Public Officer, responsible for the Justice " and Propriety of the Prosecution, when undertaken at the Public Charge, " and for the Conduct of it through its various Stages." I shall only observe, that these Statements must be prestmicd to have been in strict Conformity with the Opinions of both Sides of the House (Mr. Cal- vert, Mr. Lockhart, Sir M. W. Ridley, Mr. J. Abercrombie, Sir .lohn Sebright, Mr.'Sykes, Sir G. Chetwynd, and Mr. F:stcourt, having taken Part in the Debate). On this Speech the Discussion 1 have alluded to took place in the House of Commons ; and the Statements 1 ..ave quoted were made by Mr. Peel, tfien Secretary of State, without their being attempted to be refuted or con- tradicted.— A^e Sutor ultra Crepidam. Your obedient Servant, Gray's Inn, l.t April. An Eoi;rrV DUAFTSMAN. P. S. I very much fear, sliould Mr. Justice Willis's Recommendation be adopted, that it will tend materially to impede another Scheme that he is said to have had very much at heart, and which, if carried into Effect, nuist be of the greatest Advantage to the Province ; namely, the Union of tiie State of New York with Upper Canada ; because in that, as in all others of the United States, Public Prosecutions are uniformly conducted by Public Prosecutors ; and I doubt extremely whether the Honour confijrred upon the State by including the most opulent of the Citizens in the first Batch of his forthcoming Order of Canadian Baronets, would be deemed by the People at large a sufH- cient Compensation for the Loss of their District Attornies, and for affbrduig the Opportunity to private Individuals, prosecuting in tiieir Stead, to become Public Prosecutors. I sincerely hope that Mr. Willis will seriously refietl upon the Importance of the Union of the State of New York with Upper Canada, and not allow Questions of minor Import to come in competition with Considerations which may be regarded as truly national. By this Union, the Navigation of the .St. Lawrence would be secured for ever, and Barnhart's Island, ah-eady become celebrated in Diplomacy, might become still more renowned in History by being coupled with the first Canadian Baronetage, which should be annexed to it in Fee, (as the Earldom of Arundel is to Arundel Castle,) and then conferred by Royal Grant upon the Honourable John Walpole Willis and his Heirs, as a Reward for being the Author of so great a national Benefit. When Mr. Willis has effected this Union, so mucii to be desired, I wi cheerfully second him in any other Improvement he may suggest ; as he wi 1 then be entitled to entire Confidence as a Politician, from the Proof which will have been afforded of his Statesman-like Conceptions, and able Diplomacy. Then he may truly say with Cicero, " O fortun:»tam Nalam ine Consult Konmui.' These Remarks were suggested to me by a Friend, to whom Mr. Willis had communicated the enlarged Views he had taken of our Public Policy. By ( 908 ) By the bye, I ought to apologise to your Female Readers for quoting Latin ; but niy principal Object being the Amusement of Mr. Willis, who often seasons even his Judgments with Dashes of Horace, I hope I shall, on that Account, be excused, although I must say I hate a judicial Coxcomb. Regimental Order. Head Quarters, West Flamborough, 14th May 1828. The First Regiment, District of Gore Militia, will parade for Annual Review in front of Burley's Hotel, in the Village of Ancaster, on Wednesday the Fourth Day of June next, at Eleven o'Clock, Forenoon, as fully armed and equipt as Circumstances will permit. The Colonel Commanding expects a full Attend- ance; and none will be excused unless provided with a regular Leave of Absence from their OflScer, in Writing. By Order of the Colonel Commanding, Gko. Gurnett, Capt. and Adjutant, 1st Regt. Gore Militia. Preparing for Publication. An Enquiry into the Propriety and Expediency of Equity Pleaders presiding in the Court of King's Bench in the Colonies ; and whether Equity Pleaders were ever appointed Judges of the Courts of Common Law in England. With a few Remarks upon our present admirable System of Jurisprudence in Upper Canada. By a Canadian Barrister. Deteriora timens. Preparing for Publication. A View of the present System of Jurisprudence in Uppei Canada. By an English Barrister, now one of His Majesty's Judges of the Province of Upper Canada. Meliora sperans. CHAPTER I. Subject proposed. — Law with reference to Civil Government. — Rise and Progress of the Laws ot England. Quebec, its History, Capture, and Capitulation. — Subsequent Treaties, Statutes, and Ordinances. — English Settlers' in what is now called Upper Canada. — Emigration, Examples of, from Greece, Rome, Scythians, and other Northern Nations. — Effects of, with reference to the Mother Country. — With reference to the Place of Settlement. — The Question whether be assimilated, as far as Cases will admit, to that of the Country from which Emigration is sought to be induced. So in regard to Ecclesiastical Matters. — Increase and Prosperity, and Means of Improvement. — How far Emigration from Foreign States desirable Debates on proposed Division of the Provinces. — Stat, of 31 Geo. 3. passed, and Constitution of the Colony. CHAPTER II. Lieutenant Governor's Prerogative and Power. — Executive Counril, Office and Duty of. — First Meeting of the Local Legislature. — Legislative Council, of whom composed. — House of Assembly. Payment of Members. — Want of Intelligenc?. — Introduction of the English Law in Matters of Property and Civil Rights. — Observations thereon, and Propriety of an entire Assimilation. — Ditto, and Administration of Criminal Law, and Defects in Punishment, as in 1792.— Classification and Arrangement of the Statutes, Importance of. CHAPTER III. Provincial Law with reference to Limits and Boundaries. — First, with respect to Religion and the Government, and herein of Crown Lands purchased from Indians, and Local Revenue — Secondly, with reference to the Public, and herein, 1st, of the Administration of Justice. -Court of General Jurisdiction throughout the Province. — Its Constitution. — Terms of Sitting, Alteration of. Practice, &c. — Officers of the Court Attorney General. — Solicitor General. — Barristers and Atiornies. — Want of Court of Equity to restrain Proceedings and enforce Discovery. — Pro- priety of separating the Two. — High Character of the English Bar, and that of Ireland. — Beneficial Effects of the Example of the Bar, who since the Union have supplied the Place of the non-resident Nobility. — 2d, Courts of limited Jurisdiction. CHAPTER I. In endeavouring to bring before the Public the System of Jurisprudence which now prevails in the Province of Upper Canada, with a View of pointing out those Defects which either were inherent in its original Structure, or ■which Time may have engendered and rendered so inveterate that it nay perhaps require strong Measures to correct them j (assuraing, as I have done, ^TK ( Sou ) not only tlif Sentiments but tlio Laiif^iiaf^o also ol' a (listinirnisliod nioiliMn Senator and Jurist) (a) ; I am only l)orne np aj^ainst tin- Hurtlien of the Undertaking, by tiie Consideration tliat it is of sucli Moment as to require early and serious Attention. Impressed, as I liave ever been, with tbe utmost Reverence for the estabhslied Religion of my Country, and entertaining no Feeling but that of Charity and Good-will towards tiiose wlio profess ditterent Tenets ; regarding witii almost filial Respect and Gratitude our beloved King ; deeply venerating the Institutions of my Country, anil the general Adminis- tration of its Laws ; and mindful always ol" the Rights and Liberties of my Fellow-subjects, for whose Security and Protection those Laws were made, I cheerfully and boldly enter ujjon my Undertiking, Where Religion and Piety, Honesty and decent Behaviour, are duly established ; where the People are surely defended from external Ihnmies, and protected fn/.n internal Aggres- sions and private Injuries by the Aid and due Administration of the Laws ; where they are grateful for such Blessings, and honour and obey their King ; the Fruition of Riches and Plenteousness must be their happy Lot. Such a State of Things is the Perfection of Legislation ; for in the Words of the greatest Lawyer and Philosopher of his Age (/>) " Finis enim ct scoptis " quern leges 'ntueri, atque (juem jussio. ■ >' et sarictiones \^c) sitas dirigerc dehent, " noil alius est quam ut cives feliciter degant: id Jiet si pielatc et religione recti " instituti ; moribus honesti ; armis adversus hostes extenios tuti ; legum auTilio " adversus seditiones et privatas injurias mimiti ; imperio obseqtientcs ; copiis " locupletes ctjlorcntesfiierint. Ilarum rerum instrumenta et neni sunt leges." The best practical Exposition of the Laws, particularly those of a new State, may probably be made by resorting to their Origin. In Civil Society, cither Law or Force inevitably prevails (In socielate civili out lex autvis valet), (d) To impede the latter, recourse must be had to Justice, which may be termed the Fruit of Law ; Law being the Bond or Obligation (e), and Justice the Eft'ect or Operation of it. (Le^- praripit) {J) ; {^id qtiod praxeptum est vacatur jus.) (g) The Art or Science, therefore, of Justice, must be learned by considering Law {Jus est ars boni et wqui) (/i) ; the Result of which is the unvarying Desire to give every one his due (Justitia est conslans ct perpetua voluntas suum cuique tribuendi). (i) The true Definition of Law then is, that it is the Perfection of Reason, commanding what is useful and requisite, and pro- hibiting the reverse. (Lej: est ratio summa, quwjubet qua: sunt utilia et ?iccessaria, et contraria proliibet.) (/■) It is the Rule or Bond prescribed by some Superior, which the Inferior is bound to obey (Jussio summa majestatis singulos cives in republicd obligans) (I) ; by which what is right or wrong is ascertained and esta- blished (Jubens utilia et necessaria, ct contraria prohibens) (m) ; so that Men's (n) Actions and Civil Society may be j)roperly governed (Lev est prascriptum ad quod omnes qui in republicd sunt, vilam instiluere delient) (o) ; and thus it is the common Covenant of the State by which every Member of the Community ought to direct his Conduct (i'jv5>jxr; xo.vti xolV r,i -Tram Trf.ntrr,x;i ^r^v toii; sv T») TToXei) (p), and so direct it as to live honestly, to injure nobody, and give to every one his owii (Juris pra'cepta sunt ha'c, honeste vivcre, alteram non Icedere, suum cuique tribuere). (q) Positive Law has been said to be in all respects a Contract or Covenant, (r) The contracting Parties are the Public and the Individuals ; the Governors and the governed. On the Side of the Public it is stipulated by these Laws that a general Security shall be main- tained ; that every Person who is a Party to the Contract shall have his just (a) Mr. Brougliain. See his Speech in the House of Conipioiis, Ttli rcbruary IS'i^i. (fc) Lord li:ii()n'b Aphorisms, 7. (c) Sanclio, IS a llatiticatioii or Confirmiilion. Saiiolij est, eii legis pars, quae in legem cnnimit- lentibiis poeiiRni irrogat. Inst, dc re. divis. | sand. (d) Lord I'.aeon's Aph. I. (<■) Law; Sax. lag ; Lat. lex, from lego, or legendv, choosing; or rather d liiiando, hindinij. (/) Summ. Rom. Law, p. 16. {g) Ibid. (h) Dig. I.I, in princ. (i) Dig. 10. in princ. Inst, idem in princ. (.' ) Lord Coke's Definition of Law, from (. ic. and IJracton's Definition. (/) Snm. Rom. Law, p. 61. (m) \ ide {Ic) supra. (n) Hooker, Eccl. I'ol. 1. 1., defines Law to be the Rule which an intelligent licing seltcih do'vn for the framing of Actions by. (o) Dig. 1.3.2. (/)) Dcmosth. Oral. cont. Aristogit. (v) Iii'-t. I. I • ■''• (r) Aristot. cited in Snm. Rom. Law, p. (i.'}. 4 I Rights 1 n C 310 ) Rights protected ; and that he shall not he molested by any Act of Violence in his Person or his Fortunes ; or if he be molested, upon a proper Com- plaint he shall find that these Laws will revenge his Quarrel, and thit they can punish as well as prescribe. This is all for which the Public engages ; but by this Covenant Individual Right is protected by Public Justice. The Law provides for the Citizens, the Magistrate for the Law. The Authority of the Magistrate is derived from the Supreme Power of the State, according to the (Constitution of the Government, and established Institutions: if those be good the Laws will be beneficial, but if otherwise, (n no avail ; or to use the more expressive Language of Lord Bacon, " Jus privatum sub tuteld jtiris " publici latet, lex enim cavet civihus, magistrutus legibus. Magistratinim autem " auctoritas pendet ex majf.state impehii (,?), ctjabricd politia, ct k gibus funda- " menlalibus. Quare si ex Hid parte sanitas fuerit, et recta constitutio, leges erunt " in bono usu ; sin minus, parum in iisprwsidii erit.'' (t) Nor is Individual Right the sole Object of Public Justice, which although it be enthroned as the Guardian of private Right, to prevent its Violation and to suppress Injury, yet the Majesty of Public Justice also extends its protecting Influence to Religion, to Arms, to good Order, to Arts and Sciences, and Wealth ; and to guard and to encourage all Things requisite for the Prosperity of tlu' State. Neque tamenjus publicum ad hoc tantum special, ut addatur, tanquam custos, juri privato,ne itludviolelur, atque utcessentinjtiricc; sedextenditur etiam adreligionem, et arma, et discipUnam, et ornamenta, et opes ; denique ad omnia circa bene esse civitatis." (u) This is the true Object of all Laws ; and in order to effect their Purpose (a), they should be peculiarly adapted to the People for whom they are framed. They should distinctly relate to the Nature and Principles of the Government ; whether they form it, as may be said of Political Laws ; or whether they support it, as in the Case of Civil Institutions. They should also be relative to the Climattj of the Country, to the Quality of its Soil, to its Situation and Extent, and to the principal Occupation of the Inhabitants. They should have relation to the Degree of Liberty which the Constitution will bear ; to the Religion of the Inhabitants, to their InclinationN, Riches, Numbers, Commerce, Manners, and Customs ; in fine, they should have relation to each other, and also to their Origin, to the Intent of the Legislator, and to llie Order of Things on which they are established. Law, then, being the Sovereign Rule or Contract to which every Member of Society must submit, and by which Men's Actions and Civil Society is governed, it follows that that Power (»/), whether single or combined of many Parts, which gives or prescribes Law to the Community, must be supreme ; and wiien its Will is declared, cannot admit of any Controul without a Dissolution ol the political Frame. Upon this Ground, Liberty seems to require that every Member of the Commonwealth should have Access, before the Law is enacted, to guard himself against any Wrongs to which he might be exposed by the Admission of any partial Regu- lation ; or, in other Words, that the People of every separate Order or Rank, however distinguished by Fortune, should each have an active Share in the Legislature of their Country. In early Rome, at first the Decemvirs (2) were named, and their Laws or Tables (as they were called) approved of by an Assembly of the Centuries, in which Riches preponderated against Numbers. But the Tribunes soon established the more specious and popular Maxim, that every Citizen had an equal Right to enact the Laws which he was bound to obey, (fl) According to this Doctrine, if admitted in its full Extent, Liberty would necessarily be confined to a few small Democratic Governments, in which alone it would be practicable to carry such an Arrangement into Execu- tion. In those States where the supreme Power or Right of Legislation thus rests with the People (A) at large, Public Virtue or Goodness of Intention will (s) Tlius His Majesty's present Secretary of State for the Colonies, in a late Public Dispatch to the Lieutenant Governor of Upper Canada, used the following strong and constitutional Language : " For " the Principle that all Courts are Courts of the King, and that Justice is to be dispensed only by " Officers commissioned by the King for that Purpose, cannot be too fully recognized, or too strictly " enforced." (I) Lord Bacon's Apli. 3. («) Ibid. Aph. 4. (I) Monies,,. Spir. Law, vol. i. p. 8. (y) Ferg. Mor. & Pol. Sci. vol. ii. p. 467. ch. 5. § 8. (i) Gibb.Decl.&FallKom. Emp. vol. viii. ch.44. p.lO. (a) Ferg. Mor. & Pol.Sci. ubi supra. (6) 1 HI. Com. 49. more \ * * A ( Sll ) more probably be found, than in eitlier an entire Aristocracy or an absolute Monarchy. But popuhir Assemblits are lor tlie most Part (utile in K\|K'iiiint and feeble in Effect, though sekloni deficient in Patriotism, Honesty, or Justice. The Uitticulty, however, wliicli woulii otherwise exist in j)0|)ulou9 and extensive Nations, of eacii Member of the Community (possessed of such Property as gives him an Interest in the Stale) taking Part in the Legislation of his Country, is happily overcome by the System of Kepre- sentation (c), wiiich enables every (Jrder of the Nation, if not collectively, at least by Deputation, to take a I'art in the Councils of his Nation, and to watch vigilantly all its Procecilings. Under this System it may be urged, that every Statute being a 'i'rcaty or Act of Convention between ihe Parties concerned, is like any other Compact, bimling only on those who per- sonally or by their Deputies have given their Consent (d), and that the Representative must have an express Commission or Authority to bind !ns Constituents before he can subject them to any Condition in the Form of a Law; and that in Acts of Legislation every Individual has a liight to name his Representative ; or if this Right be witlilield from him, he is not bound by any thing which may follow ; but the only j)ractic,d)ic Assent, and that only which is required, is the general Concurrence of the Majority of those competent to act ; which, though it in fact amounts to no more than a Rule de facto, yet, by others subsetiuently availing theniselvis of it, or by their tacit Acquiescence in it, ultimately receives the universal Sanction ; for " Omncjus, " autco7isensu.tJicil,autneccs.silasco)istituit,aHlJiriii(ni/ amsuetudo." (c) 'i'lnis in England it is said to have been always held (,/ ), that no Freeman is bound by a new Law to which he liimself lias not giver, his Consent either in Person or by his Representatives; anil tiiere are Instances of the House of Commons refusing to pass a Bill before the several Members hail consulted tiieir (Jonsti- tuents. What then is the Effect of this Contract when entereil into on the Part of the People? Without doubt every Member contracts for his own good Behaviour, and engages to pay a Penalty if he perform not his Part of the Covenant; and botii the Greeks and Romans (^'■) were so possessed of this Notion, that all Civil Penalties were looked upon by them as so many Debts arising from the Breach, of Contract. At Rome tlie Person who proposed a Law, was said to ask the Consent of the People ; the Term '• People" com- prehending all Classes of Subjecis, incluiliiig those of tiie highest Orders. Pojmli appellalionc omncs civcs niiiiiilicantur, roiiiiiimcralis elimn Patriciis el Scnalorikis. (//) And the Form of proposing a Law, viz. "• Is it your Will and " Pleasure?" is to this I'lflect ; wherelore Law is defined to he (/«of//;o;>(), speaking of the Death of the same Emperor j " Quod cum palam factum est, non scctc " atqiie in domestico luctu, mcvrentibus publice cunctis, omnis tantas mortuo gratins " egit, laudesque bene meritas congessit, quantas ne vivo quidem tinquam atque " prcesenti." Nor was such Eulogy too great; for to Him His Subjects are indebted for the Preservatiofi of the Civil andRaligious Institutions ((/) of their Country pure and unimpaired amidst the Anarchy and Revolution of sur- rounding Nations ; " Ntillam reipublicw administrandw rntiotwm Monarchia: domi " constitutor prceposuit, cwteras omnes eccksias AngUcanw longe pustfiabuit." His grateful People, remembering the Mercies which under Providence He was the Means of continuing to His Country, will for ever praise him ; " Ilium " habebunt inter hymnos et preces ; ilium inter sacra gaudia et suspiria." Pious, unostentatious, upright, and benevolenr, (" Vir, plus, simplex, candidus, " urhanus,") (r), though (like the Language in wiiich this Character is sketched, and that good Man from whose Epitaph it is quoted,) he be dead in Name, yet does li live, and will for ever live, a lasting Example of Patriotism and Virtue, in the grateful Recollection of his Country, (vivit adhuc, et in omne cevum vivet, in factis nunqvam moriluris.) He will be remember J in tiie Province of Upper Canada, for the paternal Exercise of His Prerogative, and His fostering Protection of the Infant Colony ; and it will never be forgotten that in His Reign these '^^olonists obtained their present Constitution, con- ferring on them the Privilef,es and Immunities of British Subjects. (h) Burke's Address to .he King, vol. ix. 1/8. (o) Suet. vit.Tit. in princ. (y) Ibid, in fin. (7) In Memory of the late King'o Prime Minister, the great Magician of the Times has beatuifully alluded tu the Preservation of National Religion in the following Lines : — " Then while in Britain's thousand Plains, One unpolluted Church remains, Whose peaceful Hells ne'er sent around The bloody Tocsin's maddening Sound, Hut still, upon the hallow'd Day, ('onvoke the Swains to praise and pray ; While Faith and Civil Peace are dear, Grace this cold Marble with a Tear — He who preserved them — Pitt — lies here !' — liilrod. to Marm., cant. 1. (r) Bishop Smalridge's Epitaph on R. Wilson, Ksq., Author of the Fasts and Festivals of the Church uf England. But ( SIS ) But to ifveit to the Frame of the British Government. 'i"he Kinc who executes the Law, is also the First (.?) component Part of the Legislature. ' The Second is formed by the Lf)rd» Spiritual and Temporal ; an Aristocraticil Assembly composed of the highest Persons in the Realm, selected (but vhcn selected, as far as regards the Lords Temj)oral of England, possessing an here- ditary Right to a Place in this Assembly,) for their Piety, their Jhrtli their Valour, or their Property. The Third Part consists of the Representatives of the I'eople, freely chosen from among themselves, forming a Species of De- mocracy, and known as the House of Commons, These riiree Powers con- stitute the British Imperial Parliament, which makes all Laws in force through- out the Realm, and governs the Nation. Fach Branch (/) of this sunremi- Body may be supposed to act from different Motives ; and each of them jealoi-.s and vigilant of its own peculiar Views, is enabled to defeat any dangerous or inexpedient Measure which one or both of the others may endeavour to effect. Nothing, it is said (u), can subvert this happy Constitution but one or other of the Three Powers losing the Weight which it possesses, which, by keeping an equal Balance, preserves the Government of the whole. Should this Balance of any of them be lost, the Legislature would be changed from that which, presuming an original Contract to have subsisted, is considered to have been established in the first Instance by the general Consent and funda- mental Act of Society. Such a Change might at once (j) release all Ties of Government, and, by reducing the Community to its original unsettled Con- linon (so far at leastasregardedthatPower whose Balance has been lost), aflTnd an Opportunity to the remaining Powers of vesting in other Hands the supreme Rule or Right of Legislation for the State. This indeed appears to have been the Case at the Periocf of the happy Revolution in the Year 1688. The Lords and Commons of thf Realm in full Convention then declared(^), that KingJames II havmg endeavoi:red to subvert the Constitution of the Kingdom, by violating the original Contract between the King and the People, and having violated the fundamental Laws, and withdrawn himself from the Kingdom, had abdicated the Government, and the Throne became thereby vacant ; and on the same Occasion, the Estates of the Kingdom of Scotland {z) declared, that KingJames the Seventh had invaded the fundamental Constitution of the Kingdom, and altered it, from a legal and limited Monarchy, to an arbitrary despoti- Power • and had governed the same, to the Violation of the Laws and tiie Liberties of the Nation, inverting all the Ends of Government, whereby he had forfeited the Crown, and the Throne was become vacant. " Thus it was not to passive " Principles in our Ancestors," says an elegant Writer and distinguished Statesman (a), alluding to this great Event, " that we are now governed by a « Sovereign who cannot feel that he is a Prince without knowing his Subjects " should be free." The Revolution was a Departure from the ancient Course of the Descent of the British Monarchy. The People at that Time re-entered into their original Rights; and it was not because a positive Law -ifi orized what was then done, but because the Freedom and Safety of the o jec, the Origin and Cause of all Laws, required a Proceeding paramount anu 'superior to them. At that ever memorable and instructive Period, the Letter of the Lav.' was superseded in favour of the Substance of Liberty. To the free Choic'j, therefore, of the People, without cither King or Parliament, is owinjr that happy Establishment out of which both King and Parliament were regenerated. From that great Principle of Liberty have originated the Statutes corfirming and ratifying the Establishment from which the King derives his Right to rule over his Subjects. Those Statutes have not given to the People their Liberties ; their Liberties have produced them. What a Lesson do^ s this mighty EfTort af!brd of the Equity and Wisdom of Compliance by those to whom supreme Power is entrusted with the general Feelings of great Com- munities, and of those Orders which compose them. Much Power is tolerated and passes unquestioned, where much is yielded to Opinion ; all is disputed where every thing is enforced. Laws should be tuned in unison with Manners ; and (i) 1 131. Com. 50. . , , ^, „ (0 ^^''^' («) Il)id. p. 51. (x) Locke on Ooveriiniciit, part 22. » 212., cited in 1 Bl. Com. ubi supra (y) Com.Jonr. 7tb Feb. 10S8. (,) Tyndal's Cont. of Rapin, fo.71. (2! Burke's .Addres.". to King G™. .Id, 4K Legislators i ( .1H ) Leffitlators should modiJy their Opinions and fashion their Actions to the Spirit of the Age in which they live ; and to that Spin* even the Laws themselves, if intended to be satisfactory and useful, must be auapled. The oidy Ground, however, for a legislative Alteration (/>) of any tgal Kstab- lishment is this, that he who proposes it finds the Inc inations of the Majority of the People concurring with l.is own Sense in favour of the Change. If Laws tie defective (<), if Abuses have grown up, and this be without Hesitation admitted, it is the Duty of every one to emleavour to remedy them, and introduce a Syitem of impartial, speedy, and inexpensive Justice. No practical lUin, however, will interfl-re with a defective System, without being able to introduce a better in its Stead. '• Still as yoii rise, tlie Suite exulted tiMi, " Finds no Distcni)ier while 'tis t'liiingil by you — " ClmiiK'd like the World's ({reat Scene ! when, vvithout Noise, " The rising Jinn Night's vulgnr Lights destroys." Burke cave this Quotation (from Waller's beautiful Panegyric on Cromwell) as a Compliment to the Memory of the Protector ; and the present Higlil Hon. Secretary of State for the Interior of the British Realm, famed alike for his legal Improvements and political Integrity, not only repeated, but entirely assented to it ; declaring at the same Time his Conviction, that thelnnciple on which all Laws should be founded ought to be, not to introduce a System which might appear perfect to a Philosopher, but a System which should take into Account all the different Circumstances of Society, without which no Alter- ation could be effectual. Indeed nothing is more true than that Laws are not to be judged so much by their apparent Consistency or philosophical 1 ropricty as their peculiar Adaptation to the Time. This is fully illustrated in the History of the Laws of England, (d) Of these Laws it has been justly said (e), " View " the whole Establishment of the Constitution. Regard the Civil Government " as it respects the Dominion of the King, the Estates and Real Iroperty of the Subjects, and the Administration of the Laws themselves. Look at tiie " Military Government as regards the Land or Naval Forces of the Realm. " Turn your Eye to what Point of the System you will, — whether to the " Foreign Relations of Great Britain, adopted for the Preservation of Peace " Abroad, or to the Domestic Administration, to preserve the Resj'ect of the " People to constituted Authorities — to the Fiscal Administration, for sup- " portui"' the Financial Concerns of the State, or to the Military Arrangements, "for furnishing a Protection and Defence for the whole, — tliey may not " shrink fro-w Comparison with the Laws ; no such odious Comparison is «' made Those Institutions were all flamed by revered Authorities; but, '^ without Extravagance or Exaggeration, the whole Support of the whole " System is the pure and free Administration of Justice betv-en Man « and Man." But to pursue the Subject. The Common Law of Eng- land, says Lord Coke (/), is "othing else but Reason gotten by long Study, Observation, and Experience, and not of every Mans natu al Reason : for " nemo nascitur artifex ." a Truism, it might be supposed, that would not easily be doubted, not only in regard to Law, but also in respect to Equity as administered in England in Courts of that Name, which., according to Sir" W. Blackstone (iO, is a laboured, connected System, governed by esta- blished Rules, and bound down by Precedents, from which those Courts do not depart even though the Reason of some of them be liable to Objection. But the lei^al Genius of Upper Canada, spurning dull Labour and hard plodding Men havinc been parliamentarily (Ji) invoked, did not, like Minerva, burst the nass'y Barriers of the Skull, but taking Advantage of the evident Emission of some of her attendant Spirits from that Tower of Strength, entered the Breacii thus made, and formed at once Six Barristers and Attornies. llius also the Ih) See Burke's Speech on the Acts of I'niforniity. , , t^ , , do>, (c Mr. Peel's Spetch on Reform of the Law. House of Comnions. 7th Feb. 18.S. (d) Mr Sngdcn's Speech on the .State of the Law, in the Hntish House of Commons, 2ath Feb. 1«2S. See also the Conclusion of Mr. Secretary Peel's Speech on the same Occasion. (A Mr ll'cu ■I'ain'- Sppwh nn the Sute of the Law. House of Commons, 7tli leD. laJB. (/) "co. on lit. 1(7 b. (g) a W. Com. 43.'. (h) Provincial Slat. 43 Ci. 3. c^.^^ ( MS ) Two Senior Jiiilgi's, not doubting, it is prosiinu'tl, that the Sister Spirit ol' I"<|iiity (tliou^h ht-r benign InHuence had never hitherto irradiated the Province, or shed its Halo round their Meads,) would Je ecjualiy propitious rvhen duly sum- moned accordin;^ to Law (i), ami fortified by the Opinion of tlie subordinate legal Officers, dcr'ired themselvj. individually competent, in addition to the Discharge of thei. "f;gal Functions, to hold a Court of Kquity at fixed Periods, where, in their own emphatic Language, " equitable Causes alone I'lould l)e "heard and adjudged." To revert to the Laws of Kngland ; they are divided into Two Kinds. (/•) First, of the unwritten Law, which includes not only general Customs, or the Common Law properly so called, but those more particular Laws and Customs applicable to certain Courts and Persons. And secondly, of the written Law, consisting of Statutes contained in Acts and Records of Parliament, which Sir Matthew Hale confines to such as were made within Time of legal Memory ; which, as the Law now stands, is since the Heginning of the Reign of King Richard the First. But it is proposed (/) that the Law in this Respect should be altered, and that the Time of legal Memory shall be reduced to a reasonable Period. Both the Common and the Statute Law flow originally from the same Source : the Statute Law being the Will of the Legisla- ture remaining on Record ; the Common Law, nothing else but Statutes anciently written, but which Time has destroyed ; and as all the Law began by Consent (m) of the Legislature, it is the same Thing whether it be now Law by Custom and Usage, or by Writing. Whatever is ancient and vciverable in our Cousti- tution C")— ■ Boyal Prerogative, Privileges of Parliament, Rights of Elections, Authority of Courts, and Trial by Jury— must have been modelled according to the Occasion. It is impossible it could be otherwise than that Matters so elaborate and artificial should have been not the Work uf C hance, but Sub- jects of Institution. The Common Law, in its largest and most comprehensive Signification, includes as well the written Statutes as the immemorial Customs and Usages of the Realm, and, as such, is the Birth-right of every Englishman, who is naturally entitled to the Protection of those Laws under which he was born ; in its stricter and more usual Acceptation it mean-, that Law by which the Proceedings of the King's Courts of Justice are directed and guided. It is said to be called (o) " the Common Law," because it is the Common Muni- cipal Law, or Rule of Justice in the Kingdom, The Origin of it was said by Lord Hnlc to be as undiscoverable as the Source of the Nile was formerly supposed to have been, and without Doubt it is involved in considerable Obscurity; but, like the Effect of the Mantle used by the Painter to conceal the Expression of that Feeling which he could not delineate, the very Obscurity excites a greater Interest in the Examination of those Features which remain unveiled. And surely there can scarcely be an Object of Curiosity more rational than the Origin ami Progress of those Laws under which we live. Political and Military Relations arc, for the greater Part, Accounts of the Ambition and Violence of Mankind. The History of the Law is the History of Justice ; and nothing can be more instructive than endeavouring to search out the first Appearances of Jurisprudence(/?) ; to observe the first Principles of Jlight springing up, involved in Superstition, and polluted with Violence, until by Length of Time and favourable Circumstances it has worked itself into Clearness: the Laws, sometimes lost and trodden down in the Confusion of Wars and Tumults, and sometimes over-ruled by the Hand of Power ; then victorious over Tyranny, growing stronger, clearer, and more decisive by the Violence they nad suffered ; enriched even by those Foreign Conquests which threatened their entire Destruction ; soflened and mellowed by Peace and Religion ; improved and exalted by Commerce, by social Inter- course, and by that great Opener of the Mind, ingenuous Science. Most peculiarly gratifying and useful must this Employment be in a new Country, whose Laws and Institutions, still in their Infancy, yet may so be modelled as (i) See the j jint Opinions of Chief Justice Campbell and Mr. Justice Sherwood, Hnd those of the t torney and Solicitor (ieueral, on the Erection of a Court of equitable Jurisdiction ui this Province. (k) See Hale's Hist. ( om. Law, c. 1. p. 1 — 4., and c. 2. p. 27. et seq. (/) See the Solicitor General's (Sir N. C.Tindal) Speech on the Reform of the Law. (n) Burke's Speech on Prosecutions for Libel. (m) See2Wils. Hep. 348. SJl (t.) Mali's Hist. Cmu. Uw, c.2\ 3. (;.) See Burke's animated Frag, o, an Essay towards an History of the Laws of England ( 3«U ) r H If' m.l to avoid the ImperfectioMs, uiul r«u|i thu Uiolies ot tliul Exneriencc wliicli, Htir. .nountin^ ovi-n the S|>ort.s onime, must cndun- liii I'ver. I'lic pre»icnt Svntciii of the Laws o( Kngland, hkv iU Laiigua^fe and its Lcui iiing, is ot'a very mixed and heter()geiic«)us iK-sciiptioii, in some respects its own, in more borrowed from the I'oTicy of Foreign Nations, and compounded, altered, and variously modilied, accoruinf^ to the ditlerent Necessities whici: the Manners, the Kehgion, an(l tlie Commerce of the People have at diHereu? Times imposed. Our Laws, says Lord I)acori(i/), are mixed as our Language ; and as our Language is so much the richer, the Laws are the more complete. I shall endeavour briefly to sket;'h the Outline of these Changes and Imiuovements. on account of their intrinsic Value, and to he the better enabled to comment on the existing Laws of Upper Canada — Laws which are founded, and in a great Measure dependent upon, and almost iiisepandjly connected with, the Laws of Kngland. Proximity ol' .Situation, and Ilesenibliiiice in Manners and Language, aHbrd abundant Proof that iJritain was first peopled from Gaul. When this took place is a Matter of Uncertainty. In the rirst rude Siate of uncultivated Countries, as Society is not close or intricate, and Property is of little Value, Liberty subsists with few Restraints, and there are but obscure Lines of any Form of Government. But though there is then but littL Authority in the Magistrate, there is often great Power lodged, or rather left, in the Father ; for as among the (iauls, so among the Britons, he had the Power of Life and Death (>•) in his own Family, over his Chil- dren and his Servants. With respect to the Wife, if indeed the Bond of Marriage subsisted in sucli barbarous Times, the Husband, it would seem, hnd the san'- Power ; at all Events, alter the Arrival of the Romans, according to the rigori/us Spi.it of their ancient Law, which is said to have originated with Romulus, the Husband, who, as paieijamilias, had the Sovereignty of the Mansion, {dominus qui in putestale liahclmt,) might, in the Plenitude of his Power, dismiss {s) his Wife at Pleasure, and without Controul, and the Wife had no Redress against him ; as in case of Adultery, he had even the Power of Life and Death. This Supremacy of the Husband does not seem very extraordinary ; ami Dioiiysius Halicarnassus says, that the Wife was e([iially punishable by llie Husband for the Crime of drinking strong Liquors — u Law to which is attributed the Reason for the Ladies saluting their Relations, tiiat they might convince them, by tliei.' Hieatli, that they had not offended against the Custom ; and it is supposed that the old English Custom of saluting the Bride (/) immediately after the Wedding, is derived from this Practice of the Romans. That Attention which is ever due to all that relates to the lo',v.liest Part of the Creation, will perhaps excuse this Digression. To return to the ancient Britons. The Drrids or Priests (and Justice was in all Countries originally administered by the Priesthood (k), which was considered, in early Society, to have more than human Power in enforcing Laws,) decided all Causes of every Description among Freemen and Hends of Families. They summoned and dissolved all the Public Assemblies ; they alone had the Power of Capital Punishments, and the sole Execution of whatever Laws subsisted among this People. These Drui Is were of both Sexes (x) ; they were kept entirely distinct from the Body of the People ; and there was a Class of them called Bards, who delivered in unwritten Songs, which they committed to the Memory of their Pupils, the History and Customs of their Country. Of their Institutions but few Traces remain ; though it is said that to them may be attributed the partible Quality of that Land which is known in England as Gavelkind, and the ancient Division of the Goods of an Intestate, established in later Times by the Statute of Distribution, {y) Such was the State of Things, when, according „o the Poet " The iiritisli warrior Queen, Ulceclin^ from the Roman Rods, Sought, with an indignant Mien, Counsel of her Country's Gods." — Cowper's UoaUicea. ((/) See this Quotation from his Proposal for a Digest, cited in 1 Bl. Com. 64. (r) Burke's Abr. Enf;. Hist. (s) Sum. Rom. Law, 176. (/) Ibid. note. (u) Dig. lib. 1. tit. li. De Orig, et Proc. Jur. (i) Burkes Abr. Eng. Hist. (y) 4BI.tr. 40S. The *.** ( ^»7 ) Tin- Roman Law prcviiiled in tin* Colonics (t) which ihut Kinpirc positcMeil in Uritain, HO loni( us tho Impt-rial I'owor inntinuid l<> maintain them. (H-sar, wliL-n ho currifil his Anm to that Inhiiul, is Hani to iiave liniml itx Inhabitants using tho same Uehgion, tlie name Goverimient (a) and Ciiittoms, iw tlie (iauU before their Subjugation, (/ani and lirituin, subdued l)y the siime Legions, tell Victoru to the Vices they actiuireil t'roin their ('on(|uerors. Thus were the I'ormer unable to resist the inroad.s of tite Hurgunaians, the Vis(»-(ioths, and the Francs ; and the latter were lell by the Uomans without Dcience againit their Saxon Invades. " Hut llic (Ivvouring Flund No mure cnilurM ( untrmil, when tu >u|>|H>rt The lii»t lleinuiiiit of Kmpire {h) w i« reoullad The weary Kniimii, iimt the Hritoii li\jr llnnervM, esihiiuMMl, Hpiritle*", and •link, (ireat I'rool' how Men enfeeble iniii Marcs I TheSworil hehinci him IhiithM ; before bim ro;ireil, Dt%i to tiis Woes, the Ueep." (r) The Roman Law seems utterly to have expired with the Kxtinction, indeed almost with the Decay, of the Imperial l'i)wer in Rritaii), atid eveii before the Kstablislitnent (>f liie Saxons. The last Forces of the Kmpire which were lell in Lnglanil, consisted chiefly of Batiivians and Germans. 1 he Saxon Intruders were also of German Origin, and their Manners and Government similar to tiiose of the People they subdued. But the Victors possessing the supreme Power, did not assume the Lav,» of the Country, but imposed tlieir own I^ws on the vanquished. Each, Iiowcvcr, springing from the same Source, tended mat'Tially to strengthen and perpetuate the Features of the German (erty, part 4. 1. C56. and the Notes. (d) Ve la Croix, ubi supra. (e) .\br. Eng. Hist., ubi supra. (/) Lamb. Archaon. Leg. Ethel, and Wilkin's Angi. Sax. Laws. (y) " In many a Field, by Civil Fury sttin'd, Bled the discordant Heptarchy, and long (Educing good from III) the Battle groan'd. Ere, Blood-cemented, Anglo-Saxons saw Egbert and Peace on one united Throne." — Thomson't Liberty. 4L tlie ( 118 ) the Title of Monarch of all Britain ; but the tranquil Enjoyment of his Victories was not of long Duration. About the Year 832, the Danes, who had previously in scattered Parties begun to make those formidable Incursions and Settle- ments which so long disturbed not only the Peace, but even the very Laws and Customs of the Island. These Invasions continued during the subsequent Reigns of Ethelwolf, Etlielred, and Alfred. Alfred (a Name for ever resplendent in the Annals of his Country) subdued these Intruders in Northum- berland, and made tliem tributary in East Anglia, where they had formed regular Establishments, and expelled them from all other Parts of his Dominions. But the Memory of the Invaders was perpetuated by their Customs and Insti- tutions ; and the Dane-lage continued in force in the Part of the Country inhabited by tliose Invaders until its subsequent Consolidation with the Menken and West Saxon-lage, and the Reduction of tliem all into one Body, attributed to King Edward the Confessor, though said to be evidently of a much later Date. (A) With respect to tiie Dane-lage, however, from the League between Alfred and Guthrum it appears, that the Danes took their Laws from the English, and accepted them as a Favour ; but without Doubt they incorporated with them many of their own peculiar Customs ; and although they may have retained the great Outline of the Laws which they are said to iiave adopted, yet must the Fruit have necessarily varied according to the Nature of the Scion engrafted on the native Stem. Alfred, as renowned in Peace as victorious in War, revived, improved, and digested all the Saxon Institutions, and compiled that Code from the local Customs of the several Provinces of the Kingdom, called his Dome-book, and known under the more general Appellation of tiie West Saxo7i-lage. The Mercen-lage consisted of the ancient Constitutions of the Kingdom of Mercia, and obtained in the Neighbourhood of Wales, and is said (/) to have probably abounded with British Customs. To Alfred is generally attributed the Honour of being the Founder of our Laws. He made a general Survey and Register of all the Property m the Kingdom, by whom it was helJ, and of what it distinctly consisted ; justly said (A) to have been " a vast Work for an Age of Ignorance and Time of Confusion," and which has been neglected by more civilised Nations in more settled Times. It was called the Roll of VVinton, and served as the Model of a Work of the same Kind afterwards made by William the Conqueror. He brought the whole Kingdom under a rsgular System of Government and Subordination, by dividing the Shire into Hundreds and Tithings, and compelling every Free- man to be entered in some Tithing, the Members of which were mutually bound for each other, for the Preservation of Peace and the avoiding Thetl and Rapine. He is even said to have divided the Kingdom into Counties ; but it seems obvious that the Shires were never settled upon any regular Plan (/), nor were they the Result of any single Design. For securing the Liberty of the Subject, he introduced the Method of giving Bail, the most certain Fence agamst the Abuses of Power. All these peculiar Regulations were under the Influence and Administration of one supreme (?n) Magistrate, the King ; in whom, as in a general Reservoir, all the executive Authority of the Law was lodged, and from whom Justice was dispersed to every Part of the Nation by distinct, yet communicating, Ducts and Channels. These perpetual Testimonies of his Wisdom remain unimpaired ev-n unto this Day. Of Alfired may be said, as of Justinian («), the vain Titles of his Victories are crumbled into Dust, but the Name of the Legislator is inscribed on a fair and lasting Monument. It has been observed, that the Reigns of weak Princes (o) are Times favourable to Liberty ; but Alfred, the wisest and bravest of all the English Princes, is the Father of their Freedom. This great Man was even jealous of the Privileges of his Subjects -, and, as his whole Life was spent in protecting them, his last Will breathes the same Spirit, declaring he had left his People as free as their own Thoughts. He not only collected with great Care a complete Body of Laws, but he wrote Comments on them for the Instruction of his Judges, who were then in general, by the Misfortune of the Time {p), ignorant ; and if he took care to correct their (h) Abr. Eng. Hiet. and Essay Hist. Law Eug. (k) Uvirke's Observations on tlie Reign of Alfred, (n) Gib. Decl. & Fall Rom. Emp., ch. 54. (0 Ibid. (u) Abr. Eug. Hist. (i) 4 Bl. Com. 412. (m) 4 Bl. Com. 411. (p) Ibid. Ignorance, k. ■* * -% . ( ai9 ) Ignorance, he was rigorous towards their Coniiption. He enquired strictly into their Conduct ; lie heard Appeals in Person ; he held his Wittena-Gemotes, or Parliaments, frequently ; and kept every Part of iiis Government in Health and Vigour. He seems, imlecd, to have been that i)erfect Model of a Prince((/) which Sages and wise Men seem fond of delineating, rather as a Picture of their own Imagination, than supposing such a Character could ever exist. We leave with Reluctance a Theme so fascinating as the mighty Works of Alfred, dwelt upon, with the fond Partiality of an Englishman, perhaps too long, to f)ursue the History of those Institutions which, by his great Wisdom, were so lappily improved and founded. Inclosure, No. 11. A plain Statement of a plain Case. Doctor Baldwin, Mr. Ketchum, Dr. Morrison, and others, take upon themselves to tell the Public, that Mr. Willis has been cruelly treated by the Government. They may believe this, Imt they do not and cannot know it. They think they can get some Number of Persons to take the Thing \ipon their Word, and let the Facts be what they may, their Purpose will then be answered. Their Government may be stigmatised as unjust, and some few People will be prejudiced against it. But let them consider, that such People of Upper Canada as think and act for themselves will look at all Sides of a Question before they decide, and that although Mr. Shephard may bring Half of the People of Vaughan and Markham to Town, atid they and Mr. Ketchum's Friends should vote a great deal to be true which is wholly untrue, it will signify little with good and sensible Men, and will neither do Mr. Willis any Service or any one else any Harm. These are plain Facts, and what will they make of them ? Mr. Osgoode, a very learned and experienced English Lawyer, was sent out to Upper Canada more tiian Thirty-five Years ago, to frame proper Acts of Parliament for establishing our Courts. He did so; and he brought in a Hill, and had it passed in 1794, forming the present Court of King's Bench. Mr. Osgoode was the first Chief Justice himself. There never were Two Puisne Judges sitting with him in Court. He soon went to Lower Canada, and then we had for a Time no Chief Justice, as was often the Case, from Sickness, Absence, or Death. Mr. Elmsley, Mr. Alcock, Mr. Scott, and Mr. Powell, \yere all English Lawyers, and have all been Chief Justices in Succession since Mr. Osgoode's Time. They have often sat iu Term with One Judge when the other was absent, and Two Judges have sat for many Terms without the Chief Justice, from the Death or Absence of the Person holding the Olficc. We remember very well that the Court has been in this State for many Years together, because His Majesty did not find it convenient at once to sujjply the Vacancy. So Things went on, and nobody ever fancied that we must be without a Court wherever the Chief Justice could not attend. The Legis- lature never thought so — the Judges never thought so — the Bar, including Mr. Baldwin and Mr. Rolph, never thought so — and the People never thought so. Did they never read the Statute ? To be sure they did ; and they knew what it meant as well then as anybody can tell them now. Well, in 1828 the Chief Justice Mr. Campbell asked for leave to go to England ; he had been more than Sixteen Years a Judge among us, and never had been absent from the Province for a single Term. His Health is very indifFerent, and he wished to take a Sea Voyage, and to go to England, in the Hope of obtaining Benefit. Till Mr. Willis came out he never asked for Leave ; but when there were Two Judges well able to do the Duty, he saw no reason why he might not have an Indulgence, which Public Officers obtain in all Countries, for no Man is required to be a perpetual Prisoner in this or any other Colony. It is true, as the Papers state, i iiat Mr. Baldwin tried to prevent his obtaining Leave ; and it is true also, that the Chief Justice would have staid, as he was pressed to do it, if there had been any Certainty of his being (9) See Hume's Reign ol Alfred. well ( 320 ) well enough to attend his Duty ; but there was too much Reason to believe that he would not be. I have heard it stated on good Authority, that the Chief Justice was requested by the Government to remain a few Weeiii ) '• Intent." — "i Hoi. .H8. HI. Com. 35y. aCd. This being the Rule with respect to tiie Construction of Statutes, we have only to observe, that the King's Bench Act erects a Court of the same Name as the Supreme Court of Common Law in England, and confers upon it all the Authority and Powers of that Court ; and in addition, states the Number of Judges which shall compose the Court so constituted. Were the Constitution of this Court in derogation of the Common Law Courts of England, or were the Court erected with Powers opposed to those Courts, then indeed the Court would be hound to conform its Practice to the Law by which it was erected. The contrary, however, being the Case, and the Constitution of our Court being a mere Copy of that of the Court of King's Bench in England, it is not only entitled to the same Powers, but it is also justified in following the Example of its great Prototype in all respects. The Argument, thprefore, with respect to the Decision upon the 31st of Edward the Third, cannot have the least Weight in determining the present Question ; for, in that t'ase, a new Court was raised, new Judges were appointed, and a new Law was introduced ; but in the present Case the Court is not opposed to existing Institutions : it is the Establishment of an old System, according to the general Law of England, introduced into a new Country. Besides, the Language of tiie Statute of Edward differs essentially from that of our Statute ; it requires that " the Chancellor and Treasurer siiall cause to " come before them, &c. taking to them," &c. The express Language of the King's Bench Act, respecting the Manner in which the Powers of the Court may be exercised, next claims our Attention. By the Fourth Clause of this Act it is enacted, " that all Writs to be sued out " of the said Court shall issue in the King's Name, and be tested by the Chief " Justice, or in his Absence by the Senior Judge of the Court," &c. That the Absence of the Chief Justice is clearly contemplated by this Enactmc.it must, we apprehend, be apparent to all Mankind. By Absence must be meant such Absence as the Chief Justice may obtain from the Government, even if it should be extended to the Space of more than One Year. But does the Learned Judge contend that the Business of the Court, the Interests of the Suitors, and the general Administration of Justice should be suspended during such Absence? Surely not ; for no Opinion so palpably injurious and absurd can for a Moment be seriously entertained. Such then was the Constitution of the Court in 1794, and such did it in all Respects continue until 1822, when it was considered that many of the Provisions of the first Act might be modified with Advantage to the Public. 'J'he Constitution of the Court, in so far as it respected its Powers and Authority, remained untouched; a slight Alteration was made in the Periods for holding the Court, and the Fourth Clause of the new Act also provided for the Absence of the Chief Justice, though in Language a little different from that used in the first Act. It enacts that the original Process shall be " tested in " the Name of the Chief Justice or Senior Puisne Judge of the si.id Court " for the Time being ;" evidently meaning in the Absence of the Chief Justice, for when present all Writs are to be tested in his Name. Were the Fourth Clause of the last Act entirely omitted, at least so much of il as respects the Puisne Judge, it would not have altered the Practice which had obtained under the former Act, although partially repealed. For the new Law was a mere Modification of the Practice of the Court, not of its Principles or Con- stitution ; consequently, that which remained unprovided for by the new Act would have received the same Construction as if no new Act had been passed, or such Construction as the Court might have chosen to put upon it. But if, by the first Act, the Chief Justice might absent himself without any Interruption of the Business of the Court, such Absence was allowed, because the Presence of that Judge in the Court of King's Bench in England was not absolutely necessary to the due Determination of any Cause pending in that Court. It proceeded upon the Principle and Practice which obtain in that respect in England ; and unless the subsequent Act changed this Principle, it would still prevail without any particular N "^ice respecting it. As to what is stated by the Learned Judge respecting the Clauses of the last Act authorizing the Appointment of Commissioners of the Court of King's Bench, and requiring the Presence of the Chief Justice before any Commission can issue, it is only necessary that we should state, for the Information of those who ( 3'il- ■who are ignorant ol the l-'act, that the Law ('^9 Car. ti. c. .5.), under whieli Commissioners are appointed in England, requires tiie Presence and Sanction of tlie Cliief .lustices of tlie several Superior Courts in England before such Commissions can issue. This Statement of the Learned Judge does not, there- fore, in the least strengthen his Argument, but only shows that he was not ';.-,art of the Law in England respecting the Appointment of Commissioners I*. 're. The Observations of the Learned Judge relative to the necessary Leave of Absence which should be obtained by Officers of the Government before leaving the Province now claim our Notice ; and not because we intend to oppose the Statement of the Learned Judge, but because we consider his Opinion uncalled for and extra-judicial. Indeed we might with great Truth declare our solemn Conviction that the whole Proceeding of the Learned Judge bears evident Marks of a strong Desire ad captandum vulgus. Whether such was his principal Object, it is not meet that we should declare ; but that it bears strong Evidence of a i )esire to obtain popular Applause, we cannot conceal. Were this the only Instance in whicli the Learned .Judge had dis- covered an Aberration from the Track of Prudence and Propriety, we should have said '♦ homiiiis est errare ," but when we bear in mind his Acquiescence in the most extraordinary and unconstitutional Proceeding of the Majority of the House of Assembly at its late Session in endeavouring to pass an ex post facto Law, appointing the Learned Judge a sort of Umpire between the other Judges upon a Point long since settled by the Court, we cannot but add. " insipientis " est persevei'are." That the Learned Judge should publicly volunteer an Opinion upon a Point certainly of Importance to the Individuals concerned, but of no Moment to the Public generally, we do indeed think most extraorlinary. What have the Public to do with the Manner in which the Chief Justice or the Solicitor General, or the Honourable James li. Macaulaij, obtained their Leave of Absence from this Province? So far as it concerned the Public, cui bono was the Information publicly vaunted forth in a Couit of Justice assembled for the sole Pinpose of ileciding upon such Matters as should be moved bej'ore them, and not by them. The Opinion of the Learned Judge upon the '2(^d and 54tli (ieo. 3. as penal Statutes cannot be passed over without a Remark. The Learned Judge declares that as they are j:;t7;a/ Statutes, they must be construed strictly ff^ww/ those Officers of Govennnent who have made themselves obnoxious to tiieir Pro- visions. This Declaration from a Judge possessing, in his own Opinion at least, more legal Information than all the Judges who have preceded him, from Chief" Justice Osgoode down, does, we confess, increase our Scepticisi i of his extra- ordinary Abilities. So far from finding any Law to warrant the Opinion of the Learned Judge, we find on the contrary that penal Statutes must be construed strictly for the Benejit of Offenders, and not against them : Thus the Statute J Ed. 0. cap. J 2. having enacted "that those who are convicted of stealing Horses should not have the Benefit of Clergy ;" the Judges conceived that this did not extend to him that should steal but One Horse. A Construc- tion of the like Strictness and Humanity was put upon the 14th Geo. 2. c. 6. against the stealing of Sheep or other Cattle. But it is useless to multiply Decisions upon a Point well known to every Tyro in the Profession j we shall therefore forbear, with this Recommendation, however, to all volunteer and extra-judicial-opinion-giving Judges and others, to make themselves Masters of their Subject ere they appear before the Public ; cacoctfics scribendi, atit Joquendi, aut carpendi, to the contrary notwithstanding. ! ,', " Si : . ■ -I' ^A A . I 3'> Jiirlosiiro, No. Hi. Extract from tliu (lure Gazette of'jtli July IS'.'H. t'oHr/ of King's Bench. ^\^, have luthcrto abstained from offering any Remarks upon the extra- oriiiiiary Events wliicii iiave marked tlie Proceedings ot' the above Court since the Accession of Mr. Justice Willis to the Hench of Upper Canada, partly on account of the supposed Connection of the Editor of this Paper with one of the Cases which have been brought before tliat Court, and partly because we were unwilling to make the Conduct of a Judge, to whose Office the highest Degree of Uespect is and ought to be attached, the Subject of Newspaper Animadversion. Hut the Events which have trans])ired in that Court within the last few Days are so extraordinary in themselves, iiave added so much to the Excitement which had previously been created, and have called f'i)rth from some of the Presses in York such an unusual Torrent of inflammatory Abuse, undeserved and misplaced Abuse, as we tiiiiik, u|)on one Party, and of adidatory Encomiums, equally imdeserved and misplaced Encomiums, as we also think, upon the other, that we feel ourselves fully justified in waiving those Considerations of mere Delicacy toward tiie Judge, for the Purpose of staling candidly, but unreservedly, the Views which we have taken of the Conduct of Mr. Justice Willis. Among the many Qualifications which are necessary to fit an Individual to discharge the import, int Duties of the Office to which Mr. Willis has been appointed, an intimate Knowledge of the Laws whicii he is about to administer, a sound Judgment, and the strictest Impartiality, are assuredly the most con- spicuous. There are a Thousand other necessary minor Qualifications, of which that courteous and respectful Bearing towards his professional Brethren, always observed in the British Courts, is not the least essential. How far the Pos- session of these indispensable Qualifications by Mr. Willis has been indicated in his judicial Career in this Colony it is our Object to enquire. The first Public Act of Mr. Justice Willis which attracted Attention is fresh in the Remembrance of our Readers. During the last York Assizes, Mr. Francis Collins, of the Canadian Freeman, comi)lained to the Judge that he, Mr. C, had been indicted for Libel by the Grand Jury, at the Instance of the Attorney General, whom he accused of partial and vindictive Feelings toward him, while he, the Attorney General, had neglected his Duty, in not prosecuting the Solicitor General for Murder, and in not instituting a Criminal Prosecution against the Persons who had attacked Mr. M'Kenzie's Press. Upon these Accusations of Mr. C, not under Oath, Air. Justice Willis reprimanded the Attorney General, whom he charged with not having performeil his Duty as a Crow" 'Officer, and whose Conduct he threatened to represent to the Home Gove, .iinent. Now, it did at that Time, and does yet, appear to us, that the Judge in this Instance evinced neither the legal Knowledge, the sound Judg- ment, or the Courtesy above alluded to. It is certainly not the Practice in England for Crown Officers to file Criminal Informations, or institute Pro- secutions, except ujjon Affidavit or formal Complaint against the Accused. The Crown, even in Criminal Cases, is but the nominal Prosecutor, and the Crown Officer assumes the Charge of the Prosecution only upon the Comj i .int of the aggrieved Party, or, what is more usual, upon the Present- ment of a Grand Jury, before whom the Complaint is first preferred. If the Friends of the deceased Mr. Ridoutan the one Case, or Mr. M'Kenzie in the other, had taken either of those Steps, and there is no doubt but they would have done so, if they conceived that the Ends of Justice required it, it would then have become the Duty of tiie Attorney General, on behalf of the Crown, to conduct tiie Prosecution against the Accused ; but surely it is neither consonant with Common Sense, or, we humbly conceive, with Law or Usage, for a Crown Officer to institute a Prosecution upon mere hearsay Evidence, or upon his own supposed personal Knowledge of the Case ; when the aggrieved Parties are living on the Spot, with all the Power, and, we may well suppose, with all the Disposition to make a Complaint, if Cause for it existed ; particularly in the Cases in question, in which the Ends of Justice, 4 iNf -iS I •j-m ) as has since been proved by the Second Trials, imd l)een previously attained ; in one of which, indeed, the Parties were only accused of being Accessaries to an Ortence, of which tlie Frinci|)al liiid been previously acciuitted by a Jury o his Country ; and the other, in which tlie Accused had already been trieil and mulcted, upon the Confession of tiie Accuser, in a Fine of Fi/t^ Tunes the Amount of tiie Injury sustained! But it does appear to us that tliere was also a Want of Courtesy, not to say of Impartiality, in tiie Course jmrsued by the Learned Judge upon this Occasion. Mr. Collins, the World should suppose, was unknown to the Court ; and even were he known, his Character, as a Public Writer, we mean, would not, we apprehend, entitle his Assertions to much additional Consideration ; made as they were, without the Obligation of an Oatli,and confessedly under the Influence of •icrsonal Resentment, on account of the Presentments which had been preferred against himself Whether known or unknown to the Court, therefore, his Accusations, made under such Circumstances, coukl, we imagine, by no means justify the Learned Judge's Con- ict to the First Crown Otticer of tiie Province, whose Character as a Public Prosecutor and a privite Individual it is universallv conceded is irreproachable, and whose Talents as a Lawyer, it is no less generally admitted, are of the highest Order; while the Judge himself, if he has beer correctly reported, had but a short Time before confessed in otien Court, that lie was but very little acquainted with Criminal Law. But apart from every other Consideration, an Officer of the Court ought, in common Courtesy, to be entitled to the Proleclion of the Bench from such Imputations as those in question ; at least until they were exhibited in a less questionable Shape ; a Proposition which was shortly afterwards sanctioned by the Judge himself; for, after listening to all the Charges which Mr. Collins had to make, after directing him indeed to recite his Accusations against tiie Attorney General in open Court, the Judge told the same Person, immediately afterwards, when he was about to prefer Complaints against the Solicitor General, that he, the Judge, could not listen " to any Observations which were " calculated to asperse a Member of the Bar ;" ai.d that if Mr. Collins had any thing to complain of, he must go before the Grand Jury ; a Course which, in our Opinion, was the only one which ought to have been dictated to Mr. Collins wiien he first called the Attention of the Court ; and we must say that we have never been able to discover either the Justice or the Impartiality of Mr. Justice Willis, in encouraging Mr. Collins to proceed so far with his Harangue, before this very necessary and proper Intimation was given to him. The Course taken by the Judge in this Instance is more difficult to account for, when it is viewed in coniieclion with other Circumstances, which it would be the merest Affectation to suppose that Judge Willis was not just as well acquainted with as every other Person in the Province. The Newspaper published by Mr. Collins had for many Weeks prior teemed with the most vehement Attacks upon the Persons alluded to— Attacks which, for Grossness of Language and Virulence of Spirit, were, perhaps, altogether unparalleled. Avowedly stimulated by a Spirit of Revenge, on account of a personal Aflront from one of the Parties, he had laboured to inflame the Public Mind, by pro- pagating, with tlie most exagge-ated Colouring, the Charges in question, and by invoking the severest Punishment known to the Law on the Heads of the Persons whom he accused. The Tale, in fact, which Mr. Collins recited to Mr. Willis in Court had been reiterateil so repeatedly in the Columns of the Freeman, that his greatest /idmirers, offended with its Indecency and wearied with its Monotony, liad ceased to peruse it. When, we say, the Course adopted by Mr. Justice W. upon this Occasion is viewed in connection with those Cir- cumstances which we hazard nothing in assuming that he was perfectly well acquainted with, his Conduct does ajipear to us to be inexplicable. Mr. Justice W. knew how much, or rather how little Foundation tiiere was for the Charges which formed the Burden of Mr. Collins's Complaint ; he knew how, and for what Reasons, the Individual before him had laboured to propagate those Charges ; he nuist, or ought to have known, that by bestowing his Countenance upon this ofi-iepeated, but then nearly worn-out Tale, he would impart a Consequence to the Individual, and an Importance to the Imputations, which they neither intrinsically merited, or, without his Countenance, could liave acquired ; and, above all, he surely should have kuown that, by making such aTale so ( i-.'7 ) so iiiiulc by sucli a IVisini tlio (iioiiiiil-work lor u I'liblic Uchiikc ol tlic Alt.ii. iicy General, lie was imparting a Poison to tlie lierololbre iiMn|i.irati\el) harmless Arrows which it is the Business ol' the I'ersons in (juestion to aim at that OHicer, and giving to the ilisaflecteil generally an Accession of that Influence which, if we are not very much mistaken, wan at the IVrioil in ques. tion very fast snl)siding. We spiak oC the Ktf'ects oC Jmlge Willis's Conilnct, not of his Intentions. We are conriilent that he coiihl not, ami iliil not iuUnil to produce such KH'ects ; but we siiy that such Kifecls have been produced, and that the Course he piusued was calciilateii to produce them ; ami we int'ei, from a Review of the whole Premises, that Mr. Willis did not evince either the legal Information or the Soundness of Jiulgnieiit which are so necessary to the proper Discharge of his high and responsible Situation ; and this Inference is justified by the Result of tlie legal I'roceedings which grew out of the Cir- cumstantes of which we have been trtating. The I'arties accused uy M rCollins, and for the Non-prosecution of whom the Judg • iiad reprehended the Crown Officer, were put upon iheir Trials; the Solicitor General and Mr. Small as Accessaries to a Murder, (thougii the I'rincipal had been indicteil only for Manslaughter, and acquitted Eleven Years ago,) and they were declared not guilty, as every body knew they must he; and the I'arties cluirgeil with a Riot on Mr. M'Ken/ie's Premises (who had previously been tried on an Action for Damages, ami lined, as we before slated. Fifty Times the .\mount of the Damages sustained,) were again put upon their Trial, and of course con- victed ; but Mr. M'Kenzie stated, very ingenuously we conceive, that he con- sidered the Ends of Justice to be amply satisfied by the former Verdict, and that/fe had no Wish to pursue the Matter any furlher ; when the Judge, tacitly assenting to the Proposition, ordered the Parties to be discharged, upon the Payment of Five Shillings. Thus, so far as the Ends of Justice are concerned. Matters were left precisely where they began ; and no other Effects were pro- duced by these extra-judicial Proceedings of Mr. Willis, save e Gratification of Mr. Collins's Resentments, the breaking up of private Fri dships, the De- struction of all Harmony between the Bench and the Bar, and luunerous other Evils, whicii every generous Mind must long deplore. For obvious Reasons we shall pass over the Proceedings in the following Term, and tiie Collision of Opinion which arose between the Two presiding Judges — Sherwood and Willis, which furnished the Presses before alluded to with ample Materials for enhancing the Public Excitement, and come at once to the still more e.xtraordinary Events which occurred during the recent Trinity Term, premising, by the Way, that which is pretty generally known already, that during the whole of the Proceedings of the late York Assizes, Mr. Justice Willis presided alone ; and that during the Easter Term he sat with Judge Sherwood in the Absence of the Chief Justice. At the openingof the Court on the iGth Ult. Mr. Justice Willis expressed his Opinion that no Courts of King's Bench could legally be held in this Colony unless all the Three Judges were present; that since the last Sittings of that Court he had examined the Provincial Statutes, and had discovereil that in the Actof 3'tth Geo. y. cap. '2., which established the Court of King's Bench in this Colony, it was enacted, that One Chief Justice and Two Puisne Judges should preside therein ; that, in consequence, all that had hitherto i)een done by himself, and by the other Judges, when Three were not present, was " altu- " gellter nugatory and void." He stated that the Court of King's Bench in this Colony owed its " Origin and Existence " to the Provinc'-.l Statute, and therefore it Constitution was altogether difierent lioni the Courts of Law in England. After which Mr. Willis proceeded to make a Number of Quotations from the English Law Books relative to ihe Constitution of the English Courts of Justice from the Time of William the Conqueror down to the present Period. When his Remarks on this Subject were ended, the Learned Judge pro- ceeded to call the Attention of the Court to the Maimer of granting of Leave of Absence to the Public Officers of this Colony ; he read an Extract from the British Statute, which requires that such Leave should be granted only by the " Governor in Council ;" and then proceeded to state, that the Practice in this Province had been for the Lieut. Governor alone to grant Leave of Ab- sence ; I \ ( .'J'-'S ) sciice; «lmt, in Ins Opinion, the Ahscntc ..I u l'nl>lic Olluvi nn-Ur siu li Cii- cninstanccs " iiniounted to u I'orffitnro olIiiH Commission," '• tluit liis A|)|iomt- " nu'iit was to all Intents and Purposes voiil ami ot none hftect, and that •1 Resumption hy such Person of his olllcial Duties alter such Forleitiire was ille.'al. and must he productive of tiie most serious Consetpiences. I Ins is the'Snbstance of the Opinions delivered hy Mr. Justice Willis upon the Oc- casion in (niestion. We are not Lasvyers. and have no I'retensions to the Ability to speak to this Question as such ; hut upon a Review ot the whole Circumstances the li)llowing Suggestions very naturally present themselves. That there is an Irrelevancy helween the Position taken by Judge Willis, rcirarding the Constitution of the I'rovincial Court of King's Bench and the ArL'uments adduced in support of that Position. If its Constitution be •■ alto- " tether different " from that ol' the King's Iknch in hnglaud, and it it owes Its Origin and Existence to the Provincial Statute alone, the Appeal to the numerous English Authorities on the Subject of the Manner in which the English Courts were originally constituted was unnecessary ; and the Merits of Judge Willis's Opinions must be tried by a Reference to that Statute, which Statute enacts that "One Chief Justice together with Two Puisne Judges shall '« preside therein;" meaning, as we apprehend, that the Court siouUl co«.v/,v/ of that Number of Judges, and not that the whole Number of tliose Judges sboiilil preside together at the same Time ; in like Manner as the Court of King s Hench in England consists of One Chief Justice and Three Puisne Judges, but in which we all know that it is not necessary the whole should preside at one Time There is no iloubt but the Eramers of the Provincial Statute in question adopted the English Court of King's Bench as their Model, and intended the Constitution and Practice of the Court they were about to organize should correspond therewith. This appears to us to be a rational Inteieucc from the Premises; and if so, the Opinion laid down by Mr. Willis, that Iwo Judges only cannot legally preside in this Court, must be erroneous, since nothing is more common than for the same Number to sit in the same Court •It Home ■ and whatever Inconvenience may have been produced on a recent Occasion from the Court being so constituted, and however much the Evils so produced are to be regretted, yet it by no means justifies the Inference that the Court itself was an illegal one. , „ , . . • . , ^Vith regard to Mr. Willis's Opinion on the Subject upon which he next addressed the Court, we l(;ok upon it in the first place to be an extra-judicial Proceeding since he was not called upon, nor did any Necessity exist, for him thus publicly to give an Opinion on that Subject ; and in the next place we ■inprehend that he has taken wrong Grounds. The British Statute from which he quoted says, that Leave of Absence shall only be granted by the Governor or ' Mtenant Governor in Council, and not by the "Governor and " Council," , irted in the Observer ; and we presume it will turn out, that no Leave \bsence has been gianted in any other Way than that intended by the Statute. And if so. Judge Willis may very justly reproach himself with havinir own Account, but who, prior to the Events whi'.h we have been speaking of, were fast sinking into Contempt, have acquired a Power and Consequence from the Countenance which their Principles have received from Judge Willis, for which they coi-'d never otherwise have hoped. Already, adopting the Signal of that Gentleman, we find these Persons declaring that almost all the Public Officers of the Colony have forfeited their Situations; that all the Public Acts w.iich those Officers have done since the Resumption v,f their Duties are null and void, and that the People have no Right to respect or obey them ; that one of the Judges has been guilty of High Treason; ihat the Country, in fact, -s without a Government ; and that a Public Convention of the Peo|)le is imme- diatelv to be called, in order to decide upon what Steps are to lie taken in so alarming ( n'.'.j ) aliirining a Crisis ! Iiiilroil tlu-ii' arc mi lioniids lo the rintniis Kxiiltation ol tliose Iiulividuals wlio are lliiis labouring, upon tlie Strength olMiiiige Willis's Countenance, to work up the Public Mind Ik the highest Degree of Kxcite- nient, tor the I'uriiose of gratitying their own individual llesentnients or pro- moting the OWect of .'.heir own indiviilual Ambition. The most fulsome and adulatory Ijicomiums are bestowed upon Mr. Willis ; flo fulsome and so vulgar, that they cannot but be disagreeable and odious to liis Feelings as a Gentleman ; while out of these Persons modestly takes to himself the Credit lor all the good (Qualities which has been attributed to Mr. W, To him the Judge is declared to be indebted for all the Information which has enabled liini to set at defiance the " Allurements of Co'onial " Misrule." We repeat that we do not accuse Mr. Justice Willis of an Intention to pro- (luce the State of Things whrali we now witness; but we repeat also, that, wittingly or unwittingly, to the very extraordinary and unaccoiuitable Line of Conduct which that Gentleman has thought proper to pursue, that State of Things IS alone to be attributeil. In viewing the Transactions in question, we would be permitted to say, that we have not intended to wound the Feelings of Mr. Justice Willis; we have not stooped to tlu; Employment of the Language adopted by the Writers who have taken the other Side of the (Question ; we have not accused Mr. Willis of " High Treason," nor insulted him with the Appellation of " the late " Mr. Justice " Willis. It has been our Object to place the Matter before the Public in the Light in which it presents itself to ns, in Contradistinction to that in which it has been so industriously exhibited by the Advocates for Mr, Willis. Inclosurc, No. 14. Extract from the Ballturst Independent Examiner of 30th August 1828. We have, in this Number, concluded the Attorney General's Opinion on the important Questions put to him by Major Hillier. We now submit it to the calm and incpiisitive Tribunal of Public Opinion, not doubtfid but the Decision of every honest and reasonable Man will be, that the Toils of artificial Sophistry which Mr. Willis has spread have been broken through as easily as a Lion would break the Meshes of a Cobweb. A few Animals, who are hardly capable of reasoning, yet keep up the Clamour ; but their puny Attempts to assail the impregnable Fortress, which they behold every Day gaining fresh Strength and Beauty, by the Accession of all Men of Discernment and Respectability, are only the last dying Echo of the infuriate Clan who brought on the Ruin of Mr. Willis, because he was weak enough to suffer that Party to make a Tool of him, to gratify their own base Purposes. Shortly after he came to the Pro- vince, the intriguing Rascals, who have worked his Overthrow, discovered his Weakness, and began to blarney and extol him for his Independence. The fulsome Adulation, thus poured out in abundance, took hold of the little Man's Heart, He flattered himself that he was superior to the Laws ; at least that ne could twist and construe them at Pleasure, to suit the Convenience of himself or his Party — that his Arm was the standard Length for the other Judges — that they were bound to acquiesce with his Opinion, no Matter how absurd, and to venerate his Dictum, no Matter how lawless. All, however, went on smoothly for a little. The precarious Health of that venerable Man, Chief Justice Campbell, not suffering him to attend to his Duties, he had gone from the Province on Leave of Absence, "^•^udge Willis must now strike the Blow, and gain an imperishable Renown — have his Name blazoned in the Columns of the Freeman and Observer, as a spotless Patriot — live in the immortal, fiever-dj/ing, bright-green Pages of the Advocate, which is certainly as loyal as either of the other Two — and descend to Posterity, like Day and Martin, the brightest and the blackest. He comes into Court, tells them there is an entire and total Suspension of all further Business ; in fact, that there is no such Court existing in the Pro- vince ; that he knew it. and could give them Law for it. Well, what is the 4. L> Result ,k '^ ( .wo ) Hosiilf of all his rnptiniis Qiiii)IJcs, Icf^al .S« .Ji-tics, and scliolnstic Ualiocina- tion ? It is nothing but a crmie, nniligi'stcil Jumblo — a String oC wild Micolit'rent Havings — a Collection of Kxtmvngnncics and CavillingH, so inconsistent with Reason and Sense, that the meanest Pettifogger might l)lnsh to father the Bantling. Let those who stand ii|> as the Advocates of his Doctrine coolly n^k themselves, what wonid have been the Ilesnlt had Mr V.'illis'.T Logic prevailed ? The Decisions of the Superior Court in Upper Canada would hav»! been ren- dercd doubtful ; many Titles to Property now undisputed would have been invalidated; and, by engendering these Doubts, the Confidence of the People, as the natural Consecpience, must have been destroyed in those Institutions to which Hritons proudly look as the strongest Bulwarks of their Liberty. Because others, foreseeing these Kvils, did not wish to humour the W him of Mr. Willis, he leaves the Court, and goes off in a Pet. As his Conduct has degraded the Character of that learned and enlightened Body the English Bar, of which he is a Member, the most charitable Construction we can put on it is, with tlia Quebec Mercury, to try and consider him under a temporary Alienation of In- tellcct. That his monstrous Absurdities should find some Admirers does not much surprise us at such aTime as this, when every ' iiprincipled Mountebank, who figures on the Theatre of 0|)position, is sure to bo greeted as a Patriot. From the llespectability of the Station he held, these designing Incendiaries thought him a fit and proper Instrument to strike the Blow for the Completion of their Schemes; and, unfbrtunatelv for liimself, he listened to their Blandish- ments with a kind oi' CrcduUtij which so inflated his Vanity, that at length the Bubble burst. Now that their Projects are blasted, they growl most jjitifully against the Firmness and Patriotism of those wlu> saved the Province 'ioni the Anarchy and Confusion to which they meant to reduce it, through the Instrumentality of their Puppet. The Attorney General has recon- noitered every Strong-hold wherein they might expect Shelter, and has driven them from every Position. They know their Groiiid is untenable, but a counrdly Pride will not suffer tliem to make a decent Surrender. The York Observer is trying to find Flaws in this Opinion, and to make his Readers believe that no Weight should attach to it; but in this the Editor proves liimself to be as ignorant as he has always been inconsistent. At first he conducted as bitter and as unprincipled a Vehicle of Disaffection and Stupidity as ever disgraced a British Colony. He then wheeletl (right about face) anil drudg< i on under a Mask for several Years past. In this Character he seemed quite out of his Element ; besides, the Result of the Experiment did not answer liis Expectations. So far from having his Dullness deified, or his Dis- position for Venality applauded, to the Honour of the loyal Party, he was heartily despised. He now returns again, like the Dog to his Vomit, having lost the Confidence of all Parties. Of all the Efforts of misguided Genius that ever issued from the Press of a political Ne'uosman, the monstrous Progeny of which he has now been delivered is the most contemptible. It is a low, talentless, envious Attack on the Attorney General, with a few Hits at others whenever he can find an Opportunity to vent his Spleen ; indeed this seems to be his only Aim in daring to approacl the Subject. When that miserable Weathercock the Editor of the Obsener tttempts to grapple with the Attorney General, and to refute his able and argumentative Opinion, it is like a Dog baying the Moon. Mr. M'Kenzie is much better fitted for the Task ; and had he thought it practicable he would no doubt have undertaken it, but he has thought proper to let it rest. The Freeman has not Time for the T&ik him- self but he tries to pufi" Carey off to some Advantage. For several Weeks past '■■■ is sole Employment has been calling the poor Advocate Nicknames, abusing the Morgan Wig, and advertising his Readers of the difJerent volcanic Eruptions which are about to burst forth to hmy ihc patriotic Press under their Zam. Mr. Collins is as much afraid of the Appearance of a Joval Press as of the Bite of a Rattie-b. ke. Well may we expect that he will endeavour to stig- matize ours as a Vc ino of Trash, when he says that the Absurdity of the Attorney General's Opinion is a laughing Sport for every School-boy in York. He denounces the same deep (Condemnation upon the Gore Gazette, the Kingston Chronicle, and the Perth Volcano. We are proud to be classed with these Papers. Yes, fc. II ( asl ) Yc«, Mr j'rccman, oiir Vatcmo slmll continiu' to UUIt (urtli such StroninR ol I,iivii lis kIiuII ovurwiulm the whole llaiul oi jxitnolk \ \\\Aim who arc now nltLMiiptii.ff to check tlie I'ro^rusH of Hiilish r'eehiiK linm rolling its i»ure rrys- talliiH! Current over the Face of the Province. The Voice oi Truth we will not surt'or any longer to be stifled, and palpahlu FalHcluMxU and ^rosH MiHreprc- Ncntution we'will n't s-'Her to pass umU'tLited. We shall support the Colonial (iovernment in every Act which we think is just and equitable ; and, as sJjited in our first Numb we shall expose every Action wherein we cannot recognise the Spirit of tht ish Constitution. It is our Opinion that never was the Royal I'rerogativ re justly exercisetl thi in the lleinoval of Judge W'illiH (ioin Office ; and cretbre wc maintain b( I. the Justice an«l Nfcessily of this Act. Hypursuinj^ thi^' ..ine of Conduct we are sure to incur the Displeasure of such Men as Collins; but that we disregard. We shall never shrink from their Attacks. We have Nerve to retaliate ; and the Justice of oiu- Cause will ever supply us with additional Vigour tor the Mucounter. These immaculalc Villains, who have long been an ()|)probiuin and a Illot upon tii^ Country, shall meet with an Antagonist who dreads not to grapole with them. We have nothing to fear; we ask no Mercv, and we shall give no Quarter to the Jlascality of such un|);incipled Slanderers. The Law laid ilown in our lirsl Number, we wish to be still in force : " I'lmt Mercy I to others shew, Thiit Mercy shew to me. ' The Freeman, with u kind of ironical Sneer, insinuates, tlmt this is not a loyal District. He jeeringly calls it the " I.oyal Scotch District of Hathurst," which nuist be warmed by our loyal Lava. This is a malicious and base Inuendo. The Loyalty ot Scotsmen is too well known; and their intrepid IJravery too well tried and appreciated by their beloved Sovereign, to require fro.n us an Encomium on either. It has been emphatically said of Scotland, that she is a Coimtry which never tinned her Back on either Friend or Foe. He is wrong as to the Nationality of our Settlers ; they arc not all Scotch ; there are many Irish and some English Settlers ; but they are not of that Description of Persons who left their Country for the Sake oi' saving Irish Ilcmp ; not one of them ever left Home by the Consent of Twelve i,Icn. Ah ! Collins, we were bred in Ireland as well as you ! Init we almost blush for our Birth-place, by means of the Disgrace which such Refugees as you iring upon that lovely western Gem. We have known you of old ; yes, knowi. you too well for your Advantage; we siuill never shrink from ihe Task of |)ointing out your unhallowed Course, and dragging you before the Public Iribunal, where you may expect your Due. Attack us whenever you please, you shall (ind the Examiner your Match, and you shall be forced to shrink into your proper Dimensions ; for we shall no longer permit you with Im|)unity to insult Public Feeling, outbrave common Decency, palm otl'yonr vile O'fals of Billings- gate, and spread Disaftection over the Face of this happy Province. Inclosure, No. 1.5. Extract from the Lojjalist of Upper Canada, '2d August 1«'28. The Montreal Canadian Couravt is pleased to say that we " have come out •' in favour of the Dismissal of Judge Willis." The Fact of the Matter is, that although the Courant, after the Example of others, has " come out " and pronoun' ' its Judgment on the Subject, we have neithei said nor written much about it. In the First Number of our Paper which appeared after Mr. Willis had delivered his Speech from the Bench, we concisely stated ihi: Facts as they occurred ; and while we gave him an undoubted Right to the Exercise of his own Opinions with respect to the Discharge of liis judicial Duties, we stated that altl-.ough we diu not feel ourselves competent to express an Opinion on a Subject of so nuich Consequence, yet that we regreiled the Manner in which it had been agitated. There were not wanting those, howevei, wiio felt IT' ( 33^^ ) felt themselves /iiUj/ (juali/icd to determine tiie Question ; and Judge Willis's Opinion verbatim made its immediate Appearance in the Canadian Freeman, and was sent forth to the World as incontrovertible. The Sentiments of the Freeman were eagerly adopted by other Papers in York, and were followed by those in some other Parts of the Country, and by the Courant in Montreal. Others, however, quite as " learned in the Law " as these sapient hasty-judgmg Editors, being called upon by the proper Authorities for their Opinions, declared that Judge Willis's View of the Question was an incorrect one. It may have been, and we are not disposed to doubt but that it waS; a con- scientious one; but at the same Time we will not say this at the Expence of supposing that the Opinions of others, as well qualified to judge of its Merits, were not equally conscientious. The J^alance of legal Opinion was decidedly against the Conclusions drawn oy Mr. Willis ; and, after " a long Deliberation on the Subject," we stated, that the Executive Council, to whom, as the Constitutional Advisers of the Govern- ment, it had been referred, had recommended the Removal of Judge Willis from Office, in order that another Appointment might be made, until the Pleasure of His Majesty should be known. In making this Second Allusion to the Subject, we contented ourselves, as we did in the first, by simply relating the Fact. . . , „ . , No sooner, however, had the Government exercised a constitutional Right, in a constitutional Manner, tiian its having done so was seized upon as an Opportunity to cast Reproach upon it, and, as is now well known, to render the Sub; subservient to other Purposes. If the Canadian Courant, who on other O isions professes to entertain a high Respect for constituted Autho- rities ana constitutional Rights, had informed its Readers, that those Editors in Upper Canada who are in the constant Habit of vilifying and abusing the Government under which they live, had " come out" in their usual Style " in « favour of" Judge Willis, by heaping the grossest Calumnies on the Goveriior, the Council, the Judges, and other Law Officers of the Crown ; if the Courant, we say, had given Information such as this to his Readers, he would have been much nearer the Truth. But although we have hitherto considered it unnecessary to notice the many Misrepresentations which have been attempted to be imposed upon the Public, and although we have contented ourselves by performing what we conceived to be our Duty in this Case as in all others, by a Narration of Facts, let it not be supposed that we are desirous of avoiding the honest Expression of our Sentiments on the Removal of Judge Willis. We have no personal Feeling of an improper Kind towards Mr. Willis, when •we say, that in our Opinion the Act of the Government, exercised as it was in a temperate Way, after due Deliberation, and in a constitutional Manner, was but the Consummation of that wliich Mr. Willis, from his own Conduct, had every Reason to expsct. He had publicly declared, that as the Court, in his Opinion, was not constituted according to Law, he could no longer con- tinue to sit on the Bench. He had publicly "dthdrawn himself from the Bench, and by doing so had given the most incontestible Proof that he was deter- mined, even if that Opinion should ultimately prove to be incorrect, and in whatever State of Hazard and Uncertainty it might involve the Business of the Country and the Administration of Justice, to act upon it to the fullest and farthest Extent. Now we will ask, whether, under such Circumstances, when the Administration of Justice was placed in so singular a Situation, the Interference of the Government could be called unneciissary ? Was it not rather an imperative Act of Duty on their Parts, to provide an immediate Remedy for such an unusual Exigency, as that of a Countr^ about lo bt de- prived of the due Administration of the Laws and of Justice. If it had not taken the Matter up, and exercised its constitutional Powers, at such a Time, and upon such an Occasion, how could it have answered to the People, when they found their Courts of Law, no longer in existence, closed to their Com- plaints, the Property, Character, and Life of every Individual in the Commu- nity at the Mercy of those, who in such a State of Things, might feel disposed, from the Security which wculd be afforded them, to invade and destroy them. Would it be enough when the Evil was pressing sorely upon them, for the ■1 A * . 1 aiifi ) till' Government to unswei the Coniplanits ot the IVoplu, by telling tliem, that One of His Majesty's Jiulges was o/' opinion that he could no longer sit op the Bench to administer Justice to them, and that in deference to that Opinion, thongii contrary to that of all other its legal and constitutional Advisers, the Pressure must be borne in Silence ; that there was no llemed) , no Keduss; the Judge was conscientious, and that therefore the Courts of Justice nuist remain closed: Till when? Till HisMujesty's Pleasure should be made known? — No, But until the Pleasure of Mr. Justice Willis, under the cow- scientious Expression of his Opinion, was complieil with ; because to remove him from Office, to restore the Administration of .Fustice to the I'erformance of its necessary Functions, might be considered an Act ot'Crucltiy towards an Individual. To Reasoning such as tliis, the People, when uttering their Complaints against the Ane> of Justice in the Land, would naturally be led to inquire, And what is Mr. Justice Willis's Pleasure luuler the conscientious Opinion he has expressed ? What must be the Reply ? He declares that in the Absence of the Chief Justice the Court is incompetent to proceed to the Discharge of its Duty ; he declares that the Ciiief Justice, and all otiier OIHcers of the Court, who have been absent from the Province, have Jbr/ciltd their Situations, from their having, in his Opinion, ol)taineil Leave in an illej;al anil informal Maimer. Now the Return of the Ciiief .Justice to his Duties will not be sufficient to do away the conscientious Scruples of Mr. Justice Willis ; for e\ en i^' His .Majesty, with all his Law Officers, should difl'er in Opinion with him, as to the Leave of Absence to the Chief Justice, that Leave (as well as all ollieis) havuig, in Mr. Willis's Opinion, been obtained illegally and informally, ami the Ads of th^ Court, in Times past, having been declared by him to be " void," the Con- .stitution of the Court, under such Circumstances, even if the {.,'hief Justice should return, would, under Mr. Willis's Ojiinion, be quite as illegal as it was if the Chief Justice remained in England. The Acts of others who had i)eeii absent under the same Circumstances being in his Opinion to/t Cause li)r Alarm ; there were many Points of Oppression and Misrule ; biit, tlie most iiii|)ortant was, that a .Judge of the King's Bench, His Majesty's chosen and faithtiil Ser- vant, the Honourable John Walpole Willis, who, in the Judgment Seat, had acquitted himself to the Satisfaction of the People, lias been spurned from tlie Bench, without Cause, without Accusation, iiiiil without Oil'eiice! (Hoar, hear.) When Things have come to this Pitch, is there no Caii^e of Alarm ? When a learned, independent, and just Judge is driven from the Bencli in an arbitrary and oppressive Manner, and that, too, witiiont the slightest Cause, is it not Time to petition His Miijesty that he may be restored to his Otlice to administer the Laws with Justice and Impartiality ? When the .Advisers of His Majesty's Representative in this Province have counselled such a daring and arbitrary Measure, is there not strong Grounds tor Alarm ; i)articiilarly at the present Period, when the Question oVan Alteration in the Constitution of tlie Canadas is under Consideration before the Imperial Parliament .-' Now, with reference to this, is there a Man amongst you who is willing to give up our Constitution ? (A universal Cry of No, no.)' Our Constitution was given by t!ie Liberality of Great Britain as a Blessing to ou'selves and our Children ; shall we given]) our Constitir )ii and leave our \^nildren Slaves? (Cries of No, no.) In order to point out this Cause of Alarm, he would read the Remarks of Mr. Hiiskisson, Colonial Secretary, relative to our Constitution, as reported in the Lomiou Newspapers, and said to have been delivered in the British House of Conunons. He (Dr. Baldwin) was satisfied that Mr. Huskisson had the best Wishes for the \\'cllare of tlie Colony, but he has probably been misiiiformed, and his \'iews are wrong; indeed it is impossible he can well nndersland the real Situation of a Connti v so remote, when the grossest itlisreprescntations have been sent Home, froili Time to Time, both liy the Authorities here and in Lower Canada. But if Mr. Huskisson be incorrect in his Views, the People of Canada had Friends in the British Parliament who would set him right, and lio])eil that ue, in return, would always be Friends to Britisii Legislators and llritisl. Liiws. (Clueis.) Let us then stand forth in defence of our Constitution — in defence of our Rights and Privileges. [Here J)r„ Baldwin read an Extract I'roiii tlie Speech of Mr. Huskisson, and proceeded.] Mr. Huskisson here says that Parliament has the Right to alter our Constitution, and that the Colonies would willingiv acquiesce in such Alteration. How could .Mr. Huskisson suppose that the Colonists would acqiiiescc in Alterations in their Constitution without knouing what Alterations were about to take placer' Mr. Huskisson is very much mistaken on this Point. He also made some Remarks on the Petitions Irom this Province and Lower Canada ; but he (Dr, Baldwin) would sav, that the IVoi.le I 'i ! People of'Uppei ;iiul Lower Canada were the same. The Lower Canailiaiis, it is true, speak I'Vencli and we speak Eiiglisli ; but tliey are onr Bretliren, our Fellow-subjects, enjoying the same Constitution, and governed by tlie same Laws; whatever aflfects their Interests, affects ours ; whatever oppresses them, oppresses us. He hoped it would never be forgotten here, that the People of Lower Canada were the same as ourselves ; and that they were brave, indc- pendent, and patriotic. An Attempt was made to new-model their Constitution, and deprive them of their Rights ; but they sent Men of Talents Home to oppose it, who will be successful in their Mission. A most important Act was passed in 177^^, the famous declaratory Act by which Great Britain relinquished the Powei- to tax America. Mr. Huskisson had doubted whether that Act applied to the Canadas ; but he(Dr. B.) contended that that Act did apply to the Canadas, and protected the Subjects in the Colonies from Taxation, except with tlieii' own Consent. We had a Constitu- tion which recognized this Principle, and that Constitution was not subject to change from Day to Day, as Mr. Huskisson would have us believe, but was permanent. There were many other Points in the Speech of Mr. Huskisson highly calculated to excite Ahum, and, in conjunction with other Matters, went to show that no Crisis coiiKl be more alarming than the present. \ Bill was introduced some Time ago to unite the Canadas, and to compel the People of this Province to send Representatives to Lower Canada. Is there auy one of you, having a Complaint to make, who would like to carry it to Quebec or Montreal? (Xo, no.) Let me beseecli you, whenever the Question of taking away your Legislature comes before you, to cast your Eyes to unhaj)])) Ireland. (Hear, hear.) Ireland, the Theatre' of Oppression and Misrule, the Seat of Poverty, Uiscontenl, and Wretchedness. (Hear, hear.) Keep your Legislature then to yourselves ; cling to your Constitution ; they have their Faults, and so has every human Institution. The Power is in your own Hand, by being- watchful at Elections. (Hear, hear.) Yes, take tiie Advice of a Friend, and be watchful at Elections; send Men to represent you who are free from imdue Influence, independent of the Executive, and worthy the Trust reposed in them ; a Government Ofiiecr is wholly unfit to represent the People. In the House of Commons, Sir James M'Intosh ably def'emled the Interests of the Canadas ; he said, he was astonished at the Proposition of the Right Hon. Gentleman (Mr. Huskisson); and should not we be astonishetl also? [Here Dr. Baldwin read an Extract from the Speech of Sir James M'Intosh, and ))roceede(l.] -Sir James M'Intosh very properly asked, " Were the Colonies so ignorant as " not to be trusted \ 'tli the Management of their own .Afliiirs ? — Was it " dangerous to trust them ?" What do you say Gentlemen ? ((Jeneral Cry of " No, no.) Is the Home Goveriunent at such a Distance half m) well qualified to perform the Task ? (No, no.) Sir James M'Intosh again remarked, that the House of Assembly in Lower Canada *' claimed the Right to appropriate the " Supplies, and were |)erfectly justified in so doing." Mr. Huskisson admitted that the .-Vssembly of Lower Canada had a Right to dispose of a certain Sum, but not the rest. If this were so, what Power would the Assembly have? Would they not be a mere Feather in the Scale of Legislative Power ; a Blank among the other i5ranclies of the Legislature ? Would it not be contrary to ev3ry Principle of British Liberty? (Ilear, hear.) Mr. Labouchere, a Member of the British Connnons, spoke admirably upon this Question ; he said, he considered the Act of 1791, giving us our Constitution, as the great Charter of the Liberties of the Canadas, and thought it could not be altered without the greatest Danger ; remarking that a fair Trial of this Charter had not as yet been given. Mr. Huskisson again thought that Mr. Pitt's Experiment of this Charter had fiiiled. But in this he (Dr. Baldwui) differed widely from Mr. Hus- kisson, and agreed perfectly with Mr. Labouchere, that the Constitution of the Canadas never as yet had a fair Trial ; the Legislattnes of these Provinces have never been formed agreeably to the Spirit of our Constitution. In Lower Canada, with a French Population, almost all the Members of the Legislative Council are Englishmen and Goveriunent Officers. In Upper Canada they are Place- men and Pensioners, depending upon the Executive for a Living, instead of being an independent Gentry. Can this be said to be a fair Trial of Mr. Pitt's liberal ■***■- ( *}? ) liberal Kxpeiiineiit? No; aiul lie hoped the Hist Change in our Cliartor woi i.l be to have the Legislative Council composed of a liberal and indopi-ndenl Gentry; and the next Cliange to be an enlightened, independent, and efficient Kepresentation of the People in the House of Assembly. These were Changes that he hoped would soon take place; Changes which woukl tend greatly to the Advantage and Security of the Province. (Hear, hoar.) When the Unioi; Bill was introduced it was late in the Session, and onlv Sixty Members present. It was taking the Canadas by Surprize to introduce a Bill to destroy our Constitution at such a Time. But let it be recollected that when that Measure was agitated it was the Petitions whicli went Home tiom this Country that saved the Colonies; and we may hope, from the Itemarks of honourable Members in the late Discussion, that no Alteration ... ^.., Constitution will take place without mature Delii)eiation. and after 111 our as an Information from the Colonies has been previously obtained. But u^ u.i Attempt was made to take us by Surprize before, it may be so again Shall we then lie down quietly like Sheep in the Pasture, while the Wolves are about the Fences? (Hear, hear.) He hoped not — he hoped they would all sign the Petition which he held in his Hand; ho would read it for the Information of the Meeting ; and he was happy in being able to state that It was approved of by Men of sound Minds and good Undcrstaiuliiigs at a private Meeting lately held at Mr. Ketchum's for that Purpose. In takin>>- this Course they were only discharging their Duty as British Subjects; anil when our Ptt'tions came belbie His Alajesty, he had no doubt but our Grievances would be redressed, the Legislative Council would be re-modelled, our ofJensive Statutes repealed, and particularly that odious L:iw of the J-Mli oi' the late King; the Bench would be purified, the Laws impartiallv administered and we should all live peaceably together, as good Subjects, in the active Pursuits of Industry and Improvement. Dr. Baldwin tiien read the following Petition : To the King's most Excellent Majesty, (and to the several other Branches of the Imperial and Provincial Legislatures.) We, Your Majesty's dutiful and loyal Subjects, Inliabitants of Upper Canada, are constrained by the most painful Necessity to appeal to the Justice of Your Majesty against the Misrule of the Provincial Adniinistration, iind humbly to point out to Your Majesty tlie alarming Increase of our Grievances, and the Necessity of their Redress, as they become more and more inveterate from the Patience with which we have hitherto endured them, ^\'e ofler -our warmest Thanks and Gratitude to Your Majesty for appointing to he a .Iiid'-e ever \our Canadian People tiie Ilonourabic John Walpole Willis, whose private Virtues and acknowledged Learning, blended with high and uncom- promising Princij)les, uniformly evinced in the impartial Dischars , — . . ily evinced in the impartial Discharge of his judicial Duties, iiave already endeared him to the Country as one of its greatest Blessings, and as affording to the People the most flattering Presago of a new Era in tiie Administration of Justice. Of tiiis Blessing we have been iinconstitutiondly deprived ; and Misrule has at length become so bold, and Power so indiscrimate of its Victims, as to spurn from the Judgment Seat the Honourable Justice M'illis, who there presented wiiat has long been wished lor, but seldoni seen, the stern and fearless Integrity and Indei)eiideiice of a British Judge. Such judicial Integrity and Independence are alarmingly endangered when such a Judge, without Ii.ipeachment, and even without a Charge, can be jO ignominiously amoved from his high Office. Although we entertain the fullest Confidence in Your Majesty's Oesire to promote the Happiness and protect the Rights of British Subjects throughout Your ample and glorious Dominions, yet our Hopes of speedy Redress are not a httle discouraged by a Knowledge, that wiiile we, on our Part, open to Your Majesty the Abuses and Oppressions growing upon us, the very Persons we accuse are pressing, through other Channels, atibrdiiig a more favourable Access to Your Royal Belief, those interested Misrepresentations which are designed both to promote Misrule ami protect the Authors of it ; for it cannot be forgotten, that Misrepresentations from such Soiiiees have already recently endangered our civil and religious Liberties, and cruelly vilified and traduced i Q the •t. II ( 338 ) the fair Characters of the dissenting Denominations of Cinistians in this Pro- vince. And the impending Consequences of such secret Misrepresentations are further apprehended, from the 'I'enov of the Speecii of tiic lligiit Honour- able WilHam Huskisson, Your Majesty's Principal Secretary of State for the Colonies, in the Imperial House of Commons, as reported m some of the Public Prints. -^ . . Notwithstanding Defects in the Law defining our Constitution, we are, nevertheless, warmly attached to it; and view, with just Fear, every Attempt to amend it, without the Intervention of our Provincial Legislature, which is the constituted Guardian of our Rights and Liberties, and which, considering the great Distance of the Imperial Legislature, can best understand our Neces- sities, and apply the proper Remedies. It has long been the Source of many Grievances, and of their Continence, tiiat the Legislative Council is formed, not of an independent Gentry, taken from the Country at large, but of Execu- tive Councillors and Placemen, the great Majority of whom are under the immediate, active, and undue Influence of the Person administering Your Majesty's Provincial Government, holding their Offices at his mere Will and Pleasure. Hence arises, in a great Measure, the practical Irresponsibility of Executive Councillors and other official Advisers of Your Majesty's Repre- sentative, who have hitherto witli Impunity botn disregarded the Laws of the Land and despised the Opinions of the Public. From the Impunity with which the greatest Abuses have hitherto existed, and the Difficulty in such a State of Things of applying an efficient Remedy, most of our Grievances have taken their Origin and Growth. First, The Rejection by the Legislative Council of tiie most salutary Measures, passed by large Majorities in tiie House of Assembly, and much desired by the People. n ,-. . Secondly, The frequent Want of a casting Voice in the Coun of King s Bench in this Province, owing to the illegal Absence of the Judges, especially of the Chief Justice, as well on distant Journies out of the Province, as on Attendances in the Legislative and Executive Councils. Thirdly, The undue Influence which the mingled Duties of Legislative and Executive Advice have on the Judicial Function. Fourthly, The Assumption of a Power by the Executive to appropriate a large Portion of the Revenue and other Monies raised fiom the Sale of Land and otherwise in the Province, independent of the Will or Sanction of the Assembly. ^ „ , . r^m i n i r Fifthly, The extravagant Augmentation of Salaries, Oflices, anil 1 ublic Expences, quite disproportioned to the State and Circumstances of the Colony. Sixthly, The Confinement of Public Prosecutions of Offences to the sole Conduct of the Law Officers of the Crown in the Colony, embarrassing private Prosecutors in this small Community, where the Influence of Politics and Family Connections is so injuriously felt. Seventhly, The retaining in Public Offices, and the Introduction into the same, of Persons who notoriously ought to be excluded. Eighthly, The Want of carrying into Effect that rational and constitutional Controul over Public Functionaries, especially the Advisers of Your Majesty's Representative, which our Fellow-subjects in England enjoy in that happy Country. Ninthly, Our present imperfect Jury System. Tenthly, That Sheriffs, Coroners, and other Public Officers, hold their Offices during Pleasure, and not during good Beliaviour, or otherwise, as in England. Eleventhly, That the Supreme Judges of the Land hold their Offices during Pleasure, and are subjected to the Ignominy of an arbitrary Removal. Wherefore we humbly entreat for the Interference of Your Royal Prero- gative, to fiivour our Exertions to correct the Grievances under which we labour. , , , • i • We humbly suggest that the Legislative Council should be increased in Number, of whom a small J'roportion only, strictly limited by Law, to be per- mitted to hold or enjoy any Place of Emolument or Profit under the Govern- ment, or to be Members of the Executive Council. Secondly, ad;t ) Secondly, 'I'liat. llio .hiilgts of llu' Court of Kiiipt's Uoiuli Ir' hot lA'j;islalivo Councillors, nor Executive Councillors, nor I'rivy Councillors, in any Ucspcct, in the Colony. Tliinily, That the Jiulges shall not be perniitteil to absent themselves from the Province but on the most reasonable Cause, ami witii Leave obtained as |)re- scribed in the British Acts relative to Colonial Otlicers, Fourthly. That the Judges be made independent, as in England, holding their Offices, not as at present in this Province, but during good Hehavioiir, to be enquirable into, by Impeachment alone, in the Provincial Parliament, before the Legislative Council, when that Body is so modified as to become an inde- pendent Branch of the Legislature. I'ifthly, That for some Time, at least 'till the Province aflbrds nn adejpiatc Source of legal and constitutional Education, the Judges be ap|)ointed from the Bar in England, Sixthly, That a Legislative Act be made in the Provincial Parliament, to facilitate the Mode in which the present constitutional Responsibility of the Advisers of tiie Local Governmant may be carried practically into Effect, not only by the Removal of these Advisers from Ollice when they lose the Confi- dence of the People, but also by Impeachment for the heavier Offences chargeable against them. Seventhly, That our jjrcsent Jury System be amended by a new Law, whereby the Jurors to be impannelled may be more eijually selected from the Countiy, and less at the mere Nomination of the Sheriff' or his Officers ; such new Law to extend both to Grand and Petit Jurors. Having thus, under the Pressure of the present Crisis, hastily concentrated our most pressing Grievances, and humbly prayed for the Royal Aid of Yoiu- Majesty's Prerogative in providing appropriate Remedies, we, Your Majesty's dutiful and loyal Subjects, cannot omit again to bring under Your Majesty's serious Notice, as indicative of the Necessity of a Change of Men and Measures, the recent violent and unconstitutional Removal from Office of the Hon. John Waijjoie Willis, a Public Wrong, calling more and more loudly for our most earnest Remonstrance to Your Majesty, and strongly elucitlatiui^ the inju- rious Character of the Policy pursued by the present Provincial Admi- nistration. Such was the Ai)prehension of the practical bad Cons'.qsiences of the King's Bench being without a casting Voice, tliat, previous to Easter Term last, a Memorial was addressed to his Excellency, pointing out, in some Resi)ects, the Failure of Justice in such a State of Things, and requesting his Excellency to suspentl his Leave of Absence to the Chief Justice, whose Departure from the Province was at that Time publicly spoken of, even until after the approach- ing Term. His Excellency, however, did not think proper so to do, and the evil Consequences anticipated have been realized. During the Terms of Michaelmas and Hilary last past, with a full Bench, there was not fewer than Ten Cases wherein Differences in Opinion arose amongst the Judges on important Points ; and in Easter Term, durinj.- which the Chief Justice was absent, the Two Puisne Judges were divided in Opinion in Six several Ceases. In such a State of Things, substantial Justice cannot be said to be administered. The Provincial Law wisely enacts that Your Majesty's Chief Justice of this Pro- vince, together witii Two Puisne Justices, shall ])ieside in the Court of King's Bench. And as a Diversity of Opinion has, in many important Points, unhap- pily prevailed among the Judges of that Court, which is the only one of Superior Jurisdiction, and from which, in the ■. ast Majority of Ceases, there can be no Appeal, the Importance of maintaining that Court as organiseil by Law becomes the more urgent, and the Violation of that Law productive of the greater Evils. Under these Circumstances we feel that the Hon. Mr. Justice Willis deserves the Approbation and Confidence of all good Men tor withdrawing from the Court House, under a conscientious Conviction in his own Breast, that he could not administer Justice according to Law while the Court was not constituted as that Law required. Sensible as we are that the Appointment (if Judges, esteemed by the People for their Learning, and beloved by them for their Virtues, is in every Colony so I ( 340 ) 80 blessed the most conclusive Evidence of the Health of the great Boily Politic, so do we feel that this deliberate, violent, and unconstitutional Removal of Mr. Justice Willis, depriving us of the Benefit of his honourable and con- scientious Services, is a (irievance of such Magnitude as requires yom- Majesty's paternal Interference ; and this Evil we feel the more serious, because it Airnishes the present Provincial Administration with an Opportunity of placing upon the Judgment Seat a Man labouring inider those Prejudices of Family Connections and Party Feeling from which Mr. Justice Willis was necessarily and happily free, — Persons withal very infenor to that Gentleman in Education, in Talents, and in legal Knowledge. While strongly feeling this Injury, Your Majesty will, we beseech, hear our Complaint of the Conduct of the Hon. Mr. Justice Sherwood, who, in the Absence of the Chief Justice and of Mr. Justice Willis, proceeded alone to exercise all the Powers of Your Majesty's Court of King's Bench, and yet abstained from offering any Justifica- tion for such Assumption for the Satistiiction of the Public, although requested to give to the Bar his legal Reasons for such a Course. He had at that Time vacated his Office by absenting himself from the Province without the Leave prescribed by Law. We should omit a Matter of the first Importance to the happy Conduct of our Civil Att'airs, did we forbear to mention to Your Majesty, with all the Delicacy becoming us when referring to the Exorcise of Yo' Royal Prerogative, the total Inaptitude of Military Men for Civil Rule in this Province. The almost constant Absence of Your Majest; Representative from the Seat of Government, where almost daily is required his assiduous Sujicrintend- ance over Public Affiurs and Public Functionaries ; his total Unactpiaintance with the Inhabitants of the Country, with the Exception of those whose official Occupations place them about his Person, whereby he can be but ill informed of the true State of the Country, or of the Condition or Wants and Wishes of its People ; the Charge of Disloyalty against those who question the Policy of the present Administration ; a System of Espionage spreading, from the Seat of Government, over the Face of the Country j a threatened Degeneracy in the State of Society, endangering, by the insidious Operations of those morbid Causes, that Public Feeling, truly British, and yet happily alive in this Colony ; the undue Influence over Electors in many Ways, but especially by the issuing of Patents granting Land, sent into the Country in Profusion to be distributed by Candidates acceptable to the present Provincial Administration ; the Acceptance of Office by Members of the House of Assembly, without vacating their Seats, as is the necessary Consequence in England ; and the almost mortal Violence offered to the Constitution by the Exercise of worse than Military Rule in the Intimidation of the more dependent Members of the Legislative Council into the Views of the Administration at the Peril of their Offices, as was exposed in the Testimony of the Honourable William Dickson and the Honourable Thomas Clark, in their Evidence before a Committee of the House of Assembly, during the last Session ot the Provincial Parliament; wherein we, Your Majesty's faithful and loyal Subjects, being greatly aggrieved, most humbly, most earnestly, and confidently pray Your Majesty for Redress, as far as liuch Redress lies within Your Majesty's constituted Power : And, as an an Object filling us with peculiar Solicitude, we do most earnestly importune Your Maiesty, that you will be graciously pleased to restore Mr. Justice Willis to the hon^ourable Situation to which Your Majesty had appointed him, and thus protect Your Majesty's Royal Choice, Your faithful Judge, and us Your loya" Subjects, from the Wrongs that arbitrary Rule in the Provincial Authoritie; inichecked, would assuredly inflict. And Your Majesty's Petitioners, as in Duty bound, will ever pray. I les ■ f"- '*! The above Petition was then adopted, and also an Address to the Honourable John Walpole Willis. [lite Address is already printed at p. 135.] At f ail I \t a ^[c'^'tinf; ol ilie Inhiiliitants ot York anil it'* \'i(iiiity, lielil at the Market S(iiiiirf, in the Town of York, on Siitiirilay llie .Itli Day ol' July 1828, lor the Purpose of j)Ctitioning His Majesty anil the consti- tilted Authorities for a Redress of Grievances, and to consider the cruel Conduct of the Provincial Executive towards the Honourable Mr. Justice \Villis, in his violent Removal from Office, as a Judge of the Court of King's Ijench. Dr. Baldwin was called to the Chair, and Mr. W. Roe appointed Secretary. Doctor Baldwin opened the Object of the Meeting in a Speech of some Length J detailed the various Heads cf (jrievances of very serious Inmort; and, amongst these Grievances, the unjust Remoxal from OHice of the Honourable Mr. Justice Willis, so recently sent here by His Majesty, and so uncere- moniously and cruelly maltreated and rejected by the C'olQiii;;l Executive. The Doctor then read tiie Petition to His gracious Majesty at length, wherein is detailed the Catalogue of Complaints; and having asked the Meeting if they ap|)roved of the Petition as read, he was answered by general Acclamation of " Yes, yes." The Doctor then said that the Friends who acted wiili him in the Meeting deemed it proper also to prefer similar Petitions to both Houses of the Imperial Parliament, as also to our Provincial Legislature, and hoped the Meeting would approve. The Answer as before was " Yes, yes." Mr. Fenton then ascended the Platform, and begged to be heard. (Noiso, Hoots, and Hisses prevented him.) He entrentcd the (Chairman to interfere. Doctoj Baldwin accoulingly requested the People would hear Mr. Fenton. Mr. Fenton again attempted, but Hoots and Hisses as before. Mr. Robert Baldwin entreated, but all to no Purpose ; the People would not hear Mr. Fenton. Then Mr. Stanton, the Editor of the Government Gazette, ste|)ped on the Platform, and vindicated the Conduct of the Executive, who, he said, only suspended Mr. Justice Willis, but did not remove him ; that it was done with all imaginable Gentleness ; that the Administration of .lustice re(|uired bis Removal, that another might be a))pointed to his Office, as he would not act. The People expressed Dissatisfaction, and fVeiiuently interrupted him, till at length they would hear Mr, Stanton no more, and ho retired. Mr. M'fcenzie ascended the Platform. He highly approved of the Petition, and recommended it to the Meeting ; spoke of many Matters in detail, especially the gross Interference of the Executive with Legislative Councillors by Intimidation, as given in the Evidence of the Honourable Mr. Clark and the Honourable Mr. Dickson to a Committee of the House of Assembly. Mr. Sherwood spoke in Explanation of his Conduct towards Mr. Justice Willis, and in Vindication of his Conduct in the Destruction of the Types. Mr. Small concurred in the general Object of the Meeting, and approved of petitioning. Dr. Morrison then addressed the Meeting in general Ap|>robation of the Proceeding, and dwelt much on the unconstitutional Removal of Mr. Justice Willis, and proposed an Address to that injured and worthy Judge, ap|)robatory of his Conduct, ar>d expressive of Public Confidence in him. The Add.ess was read and carried with Acclamation, and signed by the Chairman auil Secretary. Mr. Wenham then addressed the Meeting ; he seemed to follow Mr. St'^nton's Course of Vindication, but with like Non-efTect. Mr. M'Millin addressed the Meeting, approving of its Object. Robert Baldwin, Esq. moved some Resolutions condemning the Grounds on which the Sheriff" of the Home District refused to call a Meeting pursuant to the Requisition ; inasmuch as he declared that he would follow Usage in this Province and in the other Colonies, as to such Meeting, instead of those Usages in Great Britain, which are, as Mr. Robert Baldwin urged, a Part of the Liberties of the People of this Province. The Resolutions, seconded by Mr. Carey, were then put and carried, as follows : — Resolved, That full Liberty to petition for the Redress of Grievances is one of the dearest Rights of British Subjects ; a Rigl . guaranteed to us by the most solemn Legislative Pledgc^- and one for which every Man of truly 4 R British I i Uritish l-Vi-liii^f woiiM iinliOHitatiiifrly saciiticu not only liis Projicrty Imt his I,ifi-. Resolved, That to ap|)ly to the High Sheritt" of the District to call Meetings for the Purpose of such petitioning is a Course highly constitutional and truly British. Resolved, That that I'art of the Answer of William Hotsfbrd .larvis, Ks(|., High Sherirt'of this District, to theCientlenien who presented him with a Jiequi- sition to call a distinct Meeting for such Purpose, wherein he states that " it " not having been the Usage in this Province, nor so far as he could learn in " other Colonies, to api)ly to the Sherirt" to call Public Meetings, except
pil Opinions ","'"7>',. •'"''«*' "' ""^ '^"'K'" ^'''"'■'' would bear any Conipahson wiifi those ot the Kditor ot tlie (Jazette? They would be •' Hyperion to a Satyr"— the merulian bun to a Farthing Rushlight. I V* 't'l'- n'"' Journals in this (ity the Ga/ette stands alone in \m Abuse of Judge W ilhs ; and as, u\ his Article on Mondav, he makes allusion to " adulatory " lernis applied to him (Judge Willis) by some of his Contemporaries in this ". ."••^'. 1'"'°"*'' ^'""" ^^ ^""^ iiicludeii, we could not well pass over in Silence the liigh Lncomium which he has thereby paid to us. Inclosure. No. 1 7. Kxtract from the Canadian Fretmnn of iJlst Aiigunl 18'28. Cvurt o/'Khifi's Bench. We copy the following Remarks on the Attorney General's Opii ion against that ot Judge Willis on this Subject, from the York Observer, and think it must oe admitted that Counsellor Carey has floored the Attorney (ieneral most completely. We repeat it, that it is a Pity Carey is not called to the Bar ; wo see no reasonable Objection to this. Carey knows mnro Latin than the Solicitor General; for in miotiiiK the riirase '' fat Justitia," Stc, the other Day, Carey was correct; while the Solicitor, in attempting to quot-j it bdore the House of Assembly some Time ago, called out " mat justilia," which every School-bo)^ knows was wrong. It is also evident, by the following Remarks that Mr. Carey IS a Man of more legal Research than either the Attorney or Solicitor, and therefore we hope soon to see him raising bis lofty Figure to dis play his masculine Eloquence at the Bar. We think it appears evident from the Authorities referred to, that the Appointment of Messrs. Hagerman and Sherwood to go the Circuit is not strictly according to Law. If so the Rule laid down in one of the Law Reports will apply directly to them, which says, that it a Judge, who hath no Jurisdiction of the Cause, give Judgment of Death, and award Execution, which is executed, such Judge is guilty of Felorii/, and also the Oliicer who executes the Sentence. Now if it should turn out that the Arguments of Judge Willis and Counsellor Carey are correct Messrs. Sherwood and Hagerman stand upon very ticklish Ground. We shall see more about it by-and-by. (From the York Observer.) Judge Willis and the Attorney General. Rerrarks upon the Attorney GcneraPs Opinion. The Attorney General says, " that Chief Justice Osgoode, who framed the " Act of 1794, never, during the Time he was in this Province, sat on the Bench "together with Two Puisne Judges." But what of that? It onlv confirms the old Saying, " that Law Makers are Law Breakers." If he did liot comply with the plain and forcible Meaning of the Act which he himself aided in making ; if he thought proper to sacrifice the Provisions of the Statute to his own Convenience or to that of his Brethren on the Bench ; all we can say is, that we are happy Judge Willis has not followed his Example. Of all Lawyers in this Province the Attorney is the last that should bnlt from the Words of the Statute, and throw himself into the Saddle of one of its Violators. Surely he cannot have forgotten his own Declaration upon the Dis- cussion of the Repeal of the 44th of the late King ? During the Discussion of the Bill, it was declared by those who framed or assisted in the passi. g of the 44th of the late King, that it was never meant to apply t the King's Subjects. In rep y to which the Attorney asserted, tliat he did uot care wliat might Inve been the Intention of the Members who framed and passed it ; he should read the W ords of the Act, and be governed by their iMeaning, and not by the Assertions or Acts of those who aided in the framing or passing of it. In this !■ R '-' Case ( J4J ) Case III' adopts a ilirti-rciil ( oiiiso ; he llirown ajtiiU; the Woiils t)( tin .\«l, Jiifcts our Atti'Mtion to the I'ractice of Mr. Osgooile, ami assnrt-s m that tho Jiiilge (likf Aiiihassai!;;:- Uamlal)«v/,v /.iwuii to Men of lircnt F.minencv ! Ami in orchT to nrove that Twcntv \Vroii;,'s make One llrj,iit, he asserts tliat the Ait was viohUeil hy Me.'srs. Khiisly, I'owell, Scott, Russell, I'owell/l'horp, Campbell, Bonlton, Slurwooil, ami Willis. Hut how came the Act to have been violated by .IuiIkc Willis? Because, upon his Arrival in this I'rovince, lie sup|>osed that .Judjj;es Campbell and Sherwood, who were on the Heiich, trad anil i/nilerstuod the Act const itiitinj,' the Court of King's ncncli, ami strictly adhered to it. Hut when, Irom the I'ru- '.'e oCthe Court, he t'ound it to be any tliinj? bu! what it professed to be, •• a Court lor the general and rei,'ular Ad.ninistration oi' .Justice throu-iliout •' this I'rovince," he had recourse to tlu. Act himself, ami discovered the Illef,Mlity of his I'roceedings. U|)on this Discovery, what was the Conduct of Judf,'e Willis? Did he, as has been imliiirly represented, k jp the Discovery to himself, and wait the approacliinj; Term for its Publication ? No. He com- municaU'd, as we have been recently informed, the Result of his Kmpiiry to iiis Kxcellency and to .Judge Sherwood, in the Hope that the onli/ Means which the Constitution points out to remedy the Evil would be adopted. Yet no Steps liavc been taken, if wc except the Amoval of the Judge ; but this will not cure the Evil ! The Attorney suys. (sppakincc of the Act of 1^0 i,) " if a Construction tlms «' uniiormly acted upon, and thus confirmed, Is not to be cousidpred as settled, ♦' but may be overturned by any succeeding Judge, there is no longer Certainty " orSafetvin theLaw." And in speaking of doid)tful Conveyances, he says, "it " has bceii declared by high Autlu)rity, that the Courts would not now sufier «• a Question to be raised which woulil disturb a great Portion of the Landed " Estates of the Kingdom." Before putting such Reasoning upon Paper, the Attorney should have read and taken into Consideration his own lengthy and laboured Argmnents upon the Alien Question. Was not the Right of Aliens to hold Lands and enjoy the Privileges of Rritish Subjects uniformly acted upon and confirmed by the Court, and considered as settled by all tho Community ? Yes; and that supposed Right has been overturned ; and the Question whicii led to its Overthrow was raised by the very Gentleman who makes use of the above Arguments, or by his most intimate political Friends! Although at the Time of bringing forward the Question, they knew full well that it might disturb ami uproot, not only a great Portion, but the Whole of the Titles to the Landed Estates in this Province. and we shall meet liim Mtzgibbon, when commeufng upon the Infamy of ji 15aron of the Exchequer. " Where is the Certainty, where is Uv> Safety of the Laws ? Where can " , hey be found ? Surely not in this Country, where Laws, which were intended «' lO be ecpial for all, are warped to tiie private Convenience of those who •' have been made the Administrators of hem. Instituted at first for the Pro- " tection of all, they are made to defend the Usurpations of a few ; and as the " People continue to respect them, wiiile those to whose Guardiansliip they " are intrusted make little account of them, they, at length, have no other ♦' Effect than tiiat of supplying tiie Want of real Strength in those few who " have placed themselves at liie Head of the Community, and rendering " regular and fren from Danger the Tyranny of the smaller Number over the «■ greater, the Oppression of the rich over the poor, the Encroachments of '♦ the powerful over the weak. " To remedy, therefore, Evils which thus have a Tendency to result fi-om the " very Nature'of Things j to oblige those who are, in a Manner, Masters of the " Law, to conform themselves to it; to render ineffectual the silent, powerful, " and ever-active Conspiracy of those who govern ; requires a Degree of Kiiow- '« ledge and a Spirit of Perseverance which are not to be exjjected from " the weak, the poor, or the Multitude; but can only be found in that '« Kernel of Knowledge — a pure and independent Bar, and a virtuous and " watchfid Press." The lUe l-..lill.lt II AiZliaLV.-l 111 Ulll.T A .W.I.I..... He speaks of the Certaintij and Sqjitjj of the Lau's, ai with the Language of Chr. Fitzgibbon, when commeufr \l ( 345 ) The Attorney says " nn Infinity «( Aitions m\n\\\ lie Mistninea lor A» fs " dcuif III accoiiliinre with the uiiilbiin I'raclico of the ((.iirt ; and n Siciu- ••■ " Contusion would ensue, ot 'vl.icli the Kxtent cannot be loreseen." In answer to this we ci.y, do not l)y u IVisevemncc in Krror add to the Inhnity ot Actions ; (h) not increase the Scene of Confiision ; hut ih) Mr. At- torni;^', i;».liui>?e Wiihs would have done, britif,' a Ihll into I'aihanient, and cure the hvih Common Sense points out this as the only eflbctual Course to put a Stop to Contusion } ami there is nothiii^r i,„t weak Aru'umeut and leijal Uuihble opposed to it. The Attorney (Jcnerul cites Authorities forourCJuidaiice in tlie( oiistruction ot Statutes under Considi ration, and we rind •' I'lowden " is his Favourite As liir as we have gone in this Argument, the only Weapons we have I'nado nse of to demolish the Fabric attempted to be raised by the Attorney are his own Arjruments upon other Questions, and what Hlackstone terms the Found- ation of Law, Common .Sense. Hut we shall now turn to his Favourite. I'lowden .says, " the best Way to oxpoiiiid a Statiiti is to consider wliat Answer those " li;!"' ,"';"''' *'"' '^'^^ ^^""'^ ''-'Vf given the Questions made if proposed to them." V\ ell tiien, suppose the followiiifr Questions had been put to them : Have you established a Court "for the ^rcneral and regular Administration '• ot Justice throughout this Province," in which Court Three dudees shall preside ? Did you intend by ''e Words, " A Chief Justice together with Two 1 m«iu- .luil^cn shai. uroMiilc ill ( ourt," iliat Two or One of the Three Juilges so ai)pointed to preside should n„t preside? Or that the Attendaiice of nny Two or One of them is sufKcicnt for the trenerai and regular Administration of Justice ? *' Was it your Intention that a Judge wi. > presides at Nisi I'rius, and who may act ignorantly or corruptly, should preside alone m the Court abov'j, and determine upon his own ^o.rupt or ignorant Proceedin-s ? We leave these Questions to be answered by any Person; and 'the Answers given do not support our Arguments and breuk down the Attorney's we shall strike our Colours. ^ '' The Attorney says, " to assume that even/ Proximm in an Act of Parliament " or ever^ Commission or Writ, or Clause in a Commission or Writ, is of ahso- " lute Necessity, is a very -nsafe Principle to argue upon." Why then Mr. Attorney have you daboled so much in the minor Cl.iuses of tlie Acts under Consideration, and tied fiom the Preambles and Hrst enacting Clauses which convey in pain and forcible Language the Objects of the Acts and the ntentions ot the iMamers? Why adopt what you" yourself term an unsafe Principle to argue uj)on ? ■^ j I '1