The Colonial Judicial Career of Mr. Justice Willis

An Imperial Reach

Mr Justice Willis’ relatively brief colonial judicial career lasted less than seventeen years. During this time he traversed approximately 40,000 nautical miles travelling to and from three British colonies in Upper Canada, British Guiana in the West Indies and Australia.

This degree of imperial mobility during the first half of the nineteenth century was quite common. In the wake of the Napoleonic Wars, governors, judges, surveyors and a host of ex-military colonial officials and their families shifted between colonies in what have come to be known as the ‘networks of Empire’. But in Willis’ case, these shifts were largely prompted by his disputes with governors, local elites and his brother judges.

Upper Canada

The most remarkable thing about Mr Justice Willis’ placement in Upper Canada was its brevity. He arrived at York (Toronto) on 13 September 1827 and departed in haste on 10 July 1828 to challenge his dismissal in London, after a period of just over nine months.

Willis was awarded the appointment through the intervention of his wife, the daughter of the eleventh Earl of Strathmore, an old but relatively impoverished aristocratic family. He and his family arrived as outsiders amongst the highly status-conscious elite later known as the ‘Family Compact’ who, bound together through schooling and inter-marriage, orbited around the Governor and Government House and dominated the legal and executive positions in the Upper Canada administration. Willis had hoped to be appointed to an Equity Court that was yet to be established, but this required local legislation. Willis was already alienated from the elite, who viewed with distrust, this outsider and his aspirations for an Equity court. As a result, he aligned himself with the Reformers in the hope that the requisite legislation might be passed.

The Reformers were an informal and disparate alignment of newspaper editors, Legislative Assembly politicians and barristers who sought to challenge the cosy arrangements by which the elite exerted their influence across the law and the administration generally. They took advantage of the presence of a new, British-born outsider sitting as judge on the Kings Bench to re-open old cases over matters that had laid dormant for several years, in order to challenge the Governor, the Attorney General, the Legislative Council and the ‘Family Compact’ elite.

The executive government and courts of Upper Canada prided themselves that their constitution was the “very image and transcript” of the British constitution. However Willis discovered that, by a strict reading of the constitution, the Kings Bench was illegal unless the Chief Justice and the two puisne (or minor) judges were present. The Chief Justice was at that time absent on leave, and Willis declined to act in a court that he considered unconstitutional. There had been many occasions in the past when only two, and even one, judge had been on the bench, and rather than destabilize the authority of the decisions passed by these diminished courts, the Governor and Executive Council dismissed Willis in June 1828.

In early 1829 the Judicial Committee of the Privy Council heard Willis’ challenge to his dismissal, but supported the Upper Canada executive by ruling that his removal was “not unwarranted, illegal or void”. However, by late 1830, the elapse of time, the change in the political landscape with the ascendancy of the Whigs, and Willis’ persistence in pursuing his cause with, eventually, a less belligerent attitude finally bore fruit. The new Whig Secretary of State, Lord Goderich, disregarded the Privy Council decision and on 9 March 1831, having reviewed the events in Upper Canada and been reassured that Willis’ “personal honor & integrity were clear from reproach”, offered him a judicial position in British Guiana. This came with a stern warning not to become embroiled in local political matters in the future.

British Guiana

British Guiana was a former Dutch colony that had fallen into British hands through the global realignment of empires during the Napoleonic Wars. Although the administration was British, the constitution and legal system remained Dutch, in accordance with the articles of capitulation. Willis, his sister and son arrived in October 1831. During the first two years of his time in British Guiana, Willis established a close relationship with Governor Benjamin D’Urban. The Governor drew on Willis’ expertise in legal history and constitutional theory to counter the arguments of the planter-dominated Court of Policy that was resisting the enforced abolition of slavery across the Empire.

However, Willis did not establish the same closeness with D’Urban’s successor, Lieutenant Governor James Carmichael Smyth, who arrived in June 1833. The new governor had little tolerance for the bitter disputes between Willis and his brother judges over the imposition of English legal practice in the courts. In February 1835 he asked that Willis be sent elsewhere, but his request was rebuffed by the Colonial Office.

Willis insisted on the superiority of English law over Dutch law. It was this stance that underpinned his more lenient minority sentencing on Damon, and several other former slaves (or ‘apprentices’), charged over an uprising in the days following the abolition of slavery on 1 August 1834. It also motivated Willis in September 1835, while as acting Chief Justice, to overturn the sentence passed by a Special Magistrate on a planter charged with cruelty towards his apprentice. The position of Special Magistrate had been specifically designed by the Colonial Office to be independent of the courts of justice, which were compromised by a strong planter influence. On both issues, Willis failed to obtain the support of the Colonial Office.

He was not successful in his application to be confirmed as permanent Chief Justice. Shortly after learning that Mr Justice Jeffrey Bent was to arrive as Chief Justice, Willis fell ill and in April 1836 gained swift approval to return to England to recuperate. He was reluctant to return to British Guiana and willingly accepted the offer of a posting to New South Wales in April 1837.

New South Wales

Willis arrived in Sydney with his second wife on 4 November 1837. He had divorced his first wife, Lady Mary Willis, on grounds of adultery in 1833. From 1838 the Supreme Court of New South Wales was headed by Chief Justice Dowling, with Justice Burton and later Justice Alfred Stephen sitting as fellow puisne judges. Willis and Burton often coincided in their opinions, but relations with Dowling and Stephen were often frosty. The personal mediation of Governor George Gipps smoothed the waters in 1840, but by early 1841, the interpersonal and professional relationships between the judges had become almost unworkable. Gipps revised his plans to establish a circuit court for the Port Phillip District, and appointed Willis as Resident Judge for the Port Phillip District instead in January 1841.

Port Phillip District

There was early elation at this recognition of Melbourne’s growing importance but questions which had started to arise in Sydney about Willis’ judicial temperament soon began to surface in the Port Phillip District as well. Within three months, Willis was clashing with magistrates and shortly afterwards with the press. In particular he was embroiled in controversy with George Arden the editor of the Port Phillip Gazette, who was jailed for contempt of court.

During 1842 Willis clashed with the barristers in his court, most particularly Henry Carrington and Charles Ebden, who sought to have their cases heard by the Sydney branch of the court rather than in Port Phillip. There were accusations of partiality amongst the pro-Willis magistrates in relation to yet another newspaper editor, William Kerr of the Port Phillip Patriot, a staunch Willis supporter. In November 1842 after sending a number of dispatches to the Colonial Office that criticized Willis’ actions, Gipps acceded to Willis’ repeated requests for sick leave. However, having been granted leave, Willis declined to take it up, vowing to “amply refute” every slander against his performance.

In December 1842 and January 1843 Gipps brought Willis’ actions under the consideration of the Executive Council in Sydney. It recommended to the Colonial Office that Willis should be removed from office, and warned Willis that any further complaint would result in his immediate dismissal. Willis received a copy of their recommendations and forwarded a long rebuttal to the Secretary of State.

In June 1843 Gipps, on the basis of another request from Superintendeant Charles La Trobe, again brought the matter before the Executive Council. This time they recommended Willis’ immediate removal from the bench.

The last weeks of Willis’ tenure in Port Phillip had been particularly tempestuous. Since late 1842 Willis had vowed to get to the bottom of financial impropriety amongst government officials, which he claimed had directly contributed to the economic depression that was cutting a swathe through the Port Phillip District. By 1843 Willis had begun to direct his attack at William Lonsdale, the long-standing sub-Treasurer, James Croke the Crown Prosecutor, and eventually La Trobe himself. Willis had become personally embroiled in the campaigning for the inaugural Legislative Council elections, and his courtroom had become increasingly unruly. In early June Willis threatened to imprison J.B. Were, one of the JPs present in the court, and on one occasion the bar walked out in protest to support the Crown Prosecutor.

Challeging His Removal

Willis received notice of his dismissal on 24 June 1843. By 15 July Willis and his family departed Port Phillip to challenge his removal in person before the Secretary of State. In 1846 Willis’ career came before the Judicial Council of the Privy Council for a second time. On this occasion it found that the Governor-in-Council had the power to remove him, and that there were sufficient grounds to do so. However, because Willis had not been given the opportunity to defend himself, the dismissal (or amotion) was reversed, and he was granted his salary in arrears. The controversial colonial judicial career of Mr Justice Willis, however, was at an end.