§ Lord Miltonsaid, that he thought this not an unfit time for him to draw the attention of the House, and of his right hon. and gallant friend opposite, to the case of Mr. Willis, who had intrusted him with a Petition. That gentleman had held the office of Judge in Upper Canada, and had been suspended and removed by the Governor, in consequence of an opinion he had expressed relative to the constitution and power of the Court of which he was a member. By the Act which established that Court, it was provided that it should consist of one Chief Justice, and two Puisne Judges. Soon after Mr. Willis joined the Court, the Chief Justice obtained from the Governor leave of absence from the colony, and accordingly quitted the country, leaving the duties of the court to be performed by the two Puisne Judges. In the course of the performance of his duty, it occurred to Mr. Willis to inquire into the legal constitution of the Court, and whether the Judges could legally carry on business without the presence of the Chief Justice. Whether the conclusion at which Mr. Willis arrived were correct or not, he meant to 552 express no opinion—it was sufficient for him that there was a reasonable doubt on the subject; and he thought it would hardly be said by any hon. Member, that this was a case of no doubt, and that Mr. Willis's opinion was clearly wrong. Mr. Willis complained to the Governor of Upper Canada, that by the provisions of the Statute it was impossible for him to sit in Court, and act in his judicial capacity, without the presence of the Chief Justice. The Governor and Council replied, that such being his opinion, they certainly could not call on him to do so. In consequence of that, however, the business of the Court ceased, and the Governor shortly afterwards suspended him from his functions. He would not arraign the conduct of the Governor of Upper Canada for thus suspending Mr. Willis; but it could not be denied, that there was something irregular in the manner in which the Governor had proceeded. By the constitution of the Colonial government Mr. Willis could not be removed from his judicial situation without the joint authority of the Governor and Council; but in the present instance, the Governor announced his decision on the 26th of June, 1828, under his own authority; and on the 27th of June, the Council confirmed the previous act of the Governor. Upon this Mr. Willis returned to England, and applied to the office of the Secretary for the Colonies—an office held, he believed, at that time, by his right hon. friend; Mr. Willis was there told, that the matter was one which must be referred to the Privy Council, and it was accordingly sent before them. The members of the Privy Council came to a different conclusion from that to which Mr. Willis had arrived, and their opinion certainly exposed him to animadversion for his erroneous opinion; but when it was considered that the Statute said positively that the Court should consist of the Chief Justice and two Puisne Judges, it must be admitted that Mr. Willis's doubts upon the legality of his sitting without the Chief Justice were not entirely devoid of foundation. The question was one of the gravest importance to that Gentleman, for, if his opinion were right, he could not sit in Court without rendering himself liable to a prosecution for false imprisonment, or even for murder, if he pronounced sentence of death without sufficient authority, in consequence of the Court not being legally constituted. He stated that circumstance 553 to show that it behaved the Judge to act with the greatest circumspection. He did not blame the government of Upper Canada for taking measures to ensure the regular administration of justice after Mr. Willis had refused to sit in Court. Nor did he complain of the decision of the Privy Council, for, with the lights they had, they could hardly be supposed to have come to a wrong conclusion. His object simply was, to bring the case of Mr. Willis under the consideration of the House, and under that of the Government to whom he must look for redress.
§ Sir George Murraysaid, that the House would, he hoped, excuse him for trespassing on its attention for a short time, while he gave an explanation of this subject; for in his mind there was no circumstance of more importance than one which affected the conduct and treatment of a Judge. It appeared to him that the respect due to the judicial station and to the abilities and learning of men who were selected to undertake it was such, that the removal of any one of them from his high office rendered it proper that the circumstances occasioning it should be brought under the consideration of the House. He was happy that this Petition of Mr. Willis had been placed in the hands of the noble Lord opposite, whose character and conduct were so highly and so deservedly respected by the House, and who was able to give every effect to a petition thus intrusted to him. It might be proper for him to enter a little into the history of Mr. Willis. That gentleman had been recommended to his office by Sir C. Wetherell, at that time Attorney-General. Soon after he went out to his office as a Judge, in Upper Canada, the Chief Justice, who had been there for seventeen years, and was suffering much from ill health, asked leave of absence from the Governor, for the purpose of returning home. During the first Term that occurred after the departure of the Chief Justice, Mr. Willis regularly discharged his duties; but between the first and second Terms he came to the opinion that the Court was incompetent to sit unless all the three Judges were present, as the Statute said that the Chief Justice and two Puisne Judges should preside there. Mr. Willis intimated his intention, on the first day of the Term of making this opinion public. The other Puisne Judge differed from him on the subject, and 554 proposed adjourning to the following day; but Mr. Willis said they could not sit as they were not a Court, and therefore they could not adjourn. He then wrote a letter to the Secretary of State for the Colonies, and another letter to an individual in the same office. These letters he transferred to the Secretary of the Lieutenant-governor, and requested that they should be officially transmitted to England. That request was refused, as the Lieutenant-governor was not aware of their contents. Mr. Willis then communicated the contents; which were, that he could not sit in the Criminal Court, as that Court was not legally constituted without the presence of the Chief Justice, but that he would do whatever other business he might legally perform in the discharge of his office. He was required to state what business he thought he could legally perform, but he did not make the statement, and indeed declined any explanation on that subject; and he not only refused to sit in future, but he openly declared his opinion that the Court was incompetent to proceed with mutters of criminal justice, and that all the decisions given in the absence of the Chief Justice were illegal and void. It was impossible that the Governor could allow matters to go on in that state, and in consequence he suspended Mr. Willis from his situation as Judge. One circumstance particularly referred to by the noble Lord required explanation. The Governor certainly expressed his opinion as to the necessity for the suspension of Mr. Willis from his office on the 26th of June, whereas the formal document was dated on the 27th; but the House would not see so much importance in that circumstance as was at first supposed; for on a former day it had been intimated by the Secretary of the Lieutenant-governor, that the Governor and the Council were aware of the circumstances, and were about to take them into their consideration. Mr. Willis made a complaint to the Secretary of State for the Colonies of the conduct of the Governor, representing his dismissal as illegal and improper. Believing that to be a question of law, it appeared that the most proper course was to bring the subject under the consideration of his Majesty in Council. Mr. Willis objected to that course on the ground of expense. In order to obviate his objection, and to remove all difficulties, the Government 555 had taken the expense on itself. The case was argued before the Privy Council, and among the members who that day composed the Court, nine in number, were the Lord Chief Baron, the Vice-chancellor, and Sir Christopher Robinson. Whatever was the decision, it had the support and authority of these persons of high station and distinguished ability in the profession of the law. Mr. Willis's complaint amounted to this, that his removal was unwarranted, illegal, and ought to be void; and the decision of the Council was, that it was not unwarranted, not illegal, and that it ought not to be void. He thought he had now stated enough to put the House in possession of the facts of the case, and to make them agree with him, that what the Government had done had been directly called for by the circumstances of the case.
§ The Petition read and to be printed.