Source: Courtesy of Wikimedia Commons
BELCHER, JONATHAN, lawyer, chief justice, and lieutenant governor of Nova Scotia; b. 23 July 1710 in Boston, Massachusetts, second son of Jonathan Belcher and his first wife, Mary Partridge; m. there on 8 April 1756 Abigail Allen, and they had five sons and two daughters; d. 30 March 1776 in Halifax, Nova Scotia.
Jonathan Belcher was born into a well-established New England family. His maternal grandfather was a lieutenant governor of New Hampshire, his paternal grandfather an important Boston merchant and member of the Massachusetts Council. Jonathan’s father was successively a leading Boston merchant and councillor, governor of Massachusetts and New Hampshire (1730–41), and governor of New Jersey (1747–57). A serious student, Jonathan graduated from his father’s alma mater, Harvard College, with an ab in 1728 and an am in 173 l. He pursued divinity studies in Boston from 1728 to 1730 and later studied mathematics at Cambridge University, where he obtained a second master’s degree in 1733. He subsequently received a third am from the College of New Jersey (Princeton University), founded by his father.
In March 1730 Belcher had been entered in the Middle Temple, London, and he arrived to study law a year later; in May 1734 he was called to the English bar. He appeared in a number of colonial causes but was unable to establish himself at Westminster Hall, the chief law court, because of “the Number of Gentlemen of Superior Merit and Interest” there. After his father’s removal from office in 1741 ended his financial support, Belcher surrendered his rank at the English bar to try his fortunes in Dublin, where it was hoped family connections might aid him. After five years of unremunerative labour he was appointed deputy secretary to the lord chancellor of Ireland through the recommendation of Lord Hardwicke, chief justice of Great Britain. In 1754 Belcher, with Edward Bullingbrooke, published a new abridgement of the Irish statutes. Later the same year, and again through Hardwicke’s intervention, he was appointed to a position which promised status, financial independence, and political significance: the first chief justiceship of Nova Scotia, at £500 per year. After he visited New Jersey in 1755–56, efforts were made to obtain for him the lieutenant governorship of that province and the succession to his father as governor. These attempts failed, however, and Belcher resided in Nova Scotia until his death.
Prior to Belcher’s arrival Nova Scotia had no formally trained law officers. In 1752 and 1753 charges of libel and partiality against officers of the courts [see James Monk*] had led Governor Peregrine Thomas Hopson* to appeal to the Lords of Trade to appoint a chief justice and an attorney general for the province. Although the latter official was never sent, in October 1754 Belcher was installed at Halifax with much pomp as both chief justice and member of the Executive Council. His first duty was to establish the courts on an orderly and constitutional basis. The Supreme Court, which replaced the General Court of governor and Council, commenced sittings immediately, with Belcher presiding; its functions were the trial of criminal cases and of debt cases above a minimum sum, the review of cases appealed from the Inferior Court of Common Pleas, and the proclamation of acts passed by the Council.
The chief justice appears to have given weight to his position as senior legal officer largely through his learning and his capacity for legal argument, but he also unhesitatingly invoked the powers of his office, as in 1755 when he refused to allow the use of government funds to pay for the transport of witnesses from Lunenburg to Halifax in a case he considered unnecessary. Both his English training and his Irish experience equipped him to oppose the Massachusetts precedents which had dominated the Nova Scotia courts prior to his arrival. In accordance with the instructions to the governor that the laws of the province should be “as near as may be Agreeable” to the laws of Britain, Belcher promoted English precedents and laws. As a result of his work they became more widely applied in Nova Scotia. In the awkward and recurring question of the extension of English laws to the colonies, Belcher supplemented his own views in favour of extension with the opinions of Chief Justice Stephen Sewall of Massachusetts and the Lords of Trade. The English law officers to whom the lords referred Belcher’s opinions for advice did not, however, agree that the colonists had taken English statute law to America as part of their cultural heritage.
Belcher was involved not only in the application and interpretation of the law in Nova Scotia but also in its creation. As the sole fully trained jurist in office for many years, he is credited with having drafted the laws passed by Nova Scotia’s first and subsequent legislatures. The very small number of laws rejected on technical grounds by the English law officers testifies to his skill and attentiveness. Belcher’s substantial legal library as well as his notebooks and long experience are evident in his revision and annotation of the first volume of Nova Scotian laws, published in 1767 by Robert Fletcher, and in his supervision the following year of an index of English laws acknowledged to extend to the colonies.
Belcher’s legal opinions also frequently formed the basis of his political duties. Upon his arrival in Nova Scotia he was instructed to determine whether the governor and Council alone possessed legal authority to constitute laws for the colony. He has long been credited with having precipitated the calling of the first elected house of assembly within Canada by rendering the judgement that the governor and Council did not possess the necessary authority. More recent studies have clearly shown, however, that he did no such thing. In a turgid report of January 1755 he argued instead that the primitive circumstances of Nova Scotian society justified the application of the 17th-century Virginian precedent of legislating for a colony in the absence of an elected assembly. The English law officers rejected his opinion and the Lords of Trade ordered Lieutenant Governor Charles Lawrence* to seek Belcher’s assistance in drawing up a plan for the calling of an assembly. Unlike Lawrence, Belcher accepted the board’s decision, and late in 1755 he presented a proposal for an assembly of town and country constituencies based on a system of minimum population and non-resident representation. Moreover, he actively opposed Lawrence’s delay in calling an assembly; early in 1757 he organized the transmission of complaints to the Lords of Trade from a majority of the Council and a committee of Halifax freeholders who objected to the governor’s procrastination. When an assembly was finally elected in 1758 the chief justice, as a member of the Executive Council, automatically became a member of the Legislative Council.
Having established supremacy in the Council through a struggle with Treasurer Benjamin Green and by representations to the Lords of Trade, Belcher became administrator of the province when Lawrence died in October 1760. In November 1761 he was commissioned lieutenant governor, while Henry Ellis, governor of Georgia, received the governorship for which Belcher had hoped. Since Ellis never came to Nova Scotia, Belcher functioned as governor until 26 Sept. 1763, when he was replaced as lieutenant governor by Montagu Wilmot*.
Although Belcher had supported the summoning of a representative assembly, his subsequent relations with it were marred by controversy. His background should have fitted him admirably for senior colonial office, but his aristocratic nature made him unsympathetic to the ambitions of the Halifax merchants who were Nova Scotia’s popular leaders. His attitude was evident in his administration.
Since Cornwallis’ day a piece of legislation known as the debtors’ act had protected Nova Scotian residents against prosecution by their creditors for debts incurred before they came to the province. The resolutions and acts affording protection had always been temporary, and by 1761 Belcher and the Lords of Trade agreed that the measure had outlived its usefulness. Both regarded it as a “manifest injustice . . . that [had] so long prevailed to the Injury of honest Creditors.” Belcher was determined that when the act expired at the close of the next session of the house it would not be renewed. In November 1761, only two and a half months after prorogation and despite advice to the contrary by councillor Joseph Gerrish, Belcher summoned the assembly. Although the prospect of the early expiration of the debtors’ act cannot have displeased the lieutenant governor, his principal reason for calling the house together was to proclaim royal disallowance of an act that had established, under the Indian commissary Benjamin Gerrish, a government-supervised monopoly in the Indian trade. He also published the Lords of Trade’s instructions to pass legislation which would create a licensing system to open the trade to all residents. Belcher believed that Gerrish’s opposition to the summoning of the legislature was the result of investments in his brother’s monopoly, but Joseph, Benjamin, and several assembly members were concerned with preventing the expiry of the debtors’ act. When seven members of the house including Benjamin Gerrish, Philip Augustus Knaut, and Malachy Salter appeared in Halifax but refused to attend the session, Belcher was forced not only to prorogue throughout November for want of a quorum but finally to delay the sitting until March 1762, when a quorum was assembled. The Lords of Trade ordered the dismissal from office of the offenders and of Joseph Gerrish, and Belcher’s gloating communication of this news nearly created a second stalemate.
Belcher experienced further conflicts with the legislature in the sessions of 1762 and 1763. In addition to refusing assent to a new debtors’ act, he rejected a new impost and excise bill favouring local distilling interests on the grounds that it could not supersede legislation already before the Lords of Trade and that it contained provisions contrary to British mercantilist law and practice. To ensure representation of its point of view before the Lords of Trade, in April 1762 the assembly had appointed as its agent in London Joshua Mauger, the influential associate of the Halifax merchants. Although Belcher’s actions in 1762 and 1763 had been consistent with his instructions from the Lords of Trade, Mauger succeeded in persuading them to reverse their position on the debtors’ act. In addition, they criticized Belcher for his faulty interpretation of British practice in his objections to the impost and excise bills. To these embarrassments Mauger added complaints that the lieutenant governor was “unacquainted with and unskilled in the Art of Government.” Belcher’s subsequent denial in Halifax of the Board’s change in position, on top of his insensitivity and inability to reconcile the duties of his office with the demands of the assembly, quite undermined his credibility.
Belcher was not an innovative man, and in several respects he continued the policies of his predecessor. In January 1762 he completed his awkward assignment of investigating charges of favouritism and conflict of interest during Lawrence’s governorship. With the experience of a year in office facing the same obstacles, Belcher exonerated Lawrence and his associates. Although he was thus sensitive to the dangers as well as the responsibility of patronage, he nevertheless proliferated minor appointments throughout the province.
In pursuing the late governor’s policies towards Indians and settlers, Belcher encountered new difficulties. In April 1761 he had separated the supply of goods to the Indian trade from the operation of the truckhouses, giving the supply contract to Alexander Grant and retaining Benjamin Gerrish as commissary in charge of the truckhouses. This measure did not, however, reduce the costs of the service as he had hoped. As well, his order of May 1762 reserving northeastern Nova Scotia from the Musquodoboit River to Baie des Chaleurs for the Micmacs was strongly criticized by the Lords of Trade. On the advantages of settling New Englanders in Nova Scotia, Belcher shared the views of Lawrence and his contemporary, Governor William Shirley of Massachusetts. Belcher’s greatest political success perhaps lay in his encouragement of the new settlements to which Lawrence had given impetus. The Lords of Trade refused, however, to authorize the continuance of the government assistance which Lawrence had offered and which Belcher, eager to further the settlements, had initially continued.
With the security of British North America assured by the capture of Montreal in 1760 Belcher, unlike his predecessors, faced a substantially reduced parliamentary grant and strict orders to economize. Yet despite continuous assurances of reductions and savings, he exceeded the annual estimates in 1761 and 1762, in the latter year by over 40 per cent. His actions inadvertently reduced the immediate economic impact of British retrenchment upon the province, but his broken promises and his irregular accounts eventually led Mauger, the province’s principal creditor, to threaten that Belcher would be held personally responsible for the provincial bills issued by him.
Although a civilian without military experience Belcher was, by virtue of his office as lieutenant governor, commander-in-chief of the colony. An insecurity in military affairs is evident in his over-cautious embargo on shipping and his establishment of martial law in July 1762, when news of Charles-Henri-Louis d’Arsac de Ternay’s raid on Newfoundland renewed fears of a French attack upon the province. But the principal military act of his administration was a small-scale repetition of Lawrence’s deportation of the Acadians. Belcher’s experience with the Acadians centred on his participation in the Council decisions of July 1755 to deport all those Acadians who refused to take the unrestricted oath of allegiance. His memorandum of 28 July 1755 justifying the decisions has usually been regarded as either expedient or irrelevant. In the years after the dispersal Belcher, like most Nova Scotians, continued to regard the Acadians as a threat to the province, despite assurances to the contrary from Major-General Sir Jeffery Amherst, commander-in-chief in North America. When, therefore, news of the French attack on Newfoundland reached Halifax, Belcher, urged on by the legislature and his own fears, accepted the advice of his council of war and on 30 July ordered all those Acadian “prisoners of war” who had earlier been concentrated at Halifax deported to Boston. The Massachusetts government refused, however, to receive further Acadians, and Belcher was faced with their return to Halifax. The pragmatic Lords of Trade rebuffed Nova Scotian fears as unwarranted and the expulsion as inexpedient.
Belcher’s demonstrated lack of political judgement, the financial chaos of his administration, and his inability to offset Mauger’s influence in London ensured that he received no further political opportunities from the Board of Trade after his replacement as lieutenant governor in 1763. As a result of complaints about the concentration of too much authority in one man, the board decided that no future chief justice should govern Nova Scotia. Although it also considered removing Belcher from the Council in 1764, he remained its president and the chief justice until his death. These positions involved him in the continuing conflicts of Nova Scotian politics. In 1764 the assembly succeeded in having John Collier* and Charles Morris appointed assistant judges of the Supreme Court. This attempt to curtail Belcher’s powers was frustrated when he drafted the assistants’ commissions so narrowly as to ensure his own pre-eminence. It was nearly a decade before the assistant judges were allowed to constitute the court by themselves or were called upon to provide opinions on legal matters in conjunction with Belcher. The assembly’s pressure about the fees and services of the courts continued throughout Belcher’s life, and, although criticism centred more upon the Inferior Court of Common Pleas than the Supreme Court, Belcher resisted such reforms as the requirement that the court go on circuit and the formation of a court of exchequer.
Despite Belcher’s opposition to Mauger’s associates during his lieutenant governorship, later events brought him within their network. In the 1760s his business affairs outside Nova Scotia were handled by a nephew in Boston, but by the 1770s his agent was Brook Watson* in London and his largest creditor John Butler. Such an alliance led to Belcher’s participation in the Council’s opposition to Governor Francis Legge. In turn Legge attributed “many errors and evils” in the administration of justice to what he considered to be Belcher’s lack of independence. In January 1776 Belcher ceased to attend the Council and petitioned the king for permission to resign his office on account of age and infirmity; he died before action was taken.
The aloofness, pomposity, and learning which marked Belcher’s role as Nova Scotia’s leading jurist were incompatible with the political aspirations instilled by his father. His real interests were academic, and like many gentlemen of his age he dabbled in verse and was knowledgeable about scientific developments. As a stalwart of St Paul’s Church and a member of the corresponding committee of the Society for the Propagation of the Gospel in Nova Scotia, Belcher was an ardent supporter of the Church of England, to which he had been converted in 1740. From 1760 until his death he served as Masonic grand master of Nova Scotia. During his brief lieutenant governorship he was continuously eager to serve the province’s best interests and to please his masters the Lords of Trade. His strong conservatism was, however, out of touch with the predominant philosophy of the age, and his genuinely good intentions foundered on the political realities of a struggling colony. His contribution to Nova Scotian development, while limited, lay in the law, where his expertise was recognized and generally respected.
BL Add. mss 32696, f.430; 35588, ff.33, 224; 35909, ff.92, 172, 206. Halifax County Court of Probate (Halifax), B37 (original estate papers of Jonathan Belcher). Halifax County Registry of Deeds (Halifax), Deeds, 1749–1836 (mfm. at PANS). Mass. Hist. Soc., Jeffries family papers, XIII. PAC, MG 11, [CO 2171, Nova Scotia A, 64–71; [CO 220], Nova Scotia B, 8, 10, 12; Nova Scotia C, 1–5; MG 23, A1, ser.l, 13. PANS, MG 1, 107–11 (Belcher papers); RG 1, 136; 163–65; 206; 286; RG 39, C, 1755–57, box 2. Princeton University Library (Princeton, N.J.), Jonathan Belcher papers, AM 1984, 9256, 9258. PRO, CO 217/15–21, 217/34, 217/43, 217/52; CO 218/5–6. USPG, B, 25; C/CAN/NS, 2. “The Belcher papers,” Mass. Hist. Soc., Coll., 6th ser., VI (1893), VII (1894). G.B., Board of Trade, JTP, 1759–63. The perpetual acts of the General Assemblies of his majesty’s province of Nova Scotia [1757–82] (Halifax, 1767-). Shipton, Sibley’s Harvard graduates, VIII, 343–64. Brebner, Neutral Yankees; New England’s outpost, 200–61. A. G. Doughty, The Acadian exiles; a chronicle of the land of Evangeline (4th ed., Toronto, 1922), 115ff. Essays in colonial history presented to Charles McLean Andrews by his students (New Haven, Conn., and London, 1931; repr. Freeport, N.Y., 1966), 169–97. Placide Gaudet, Le grand dérangement: sur qui retombe la responsabilité de l’expulsion des Acadiens (Ottawa, 1922). Émile Lauvrière, La tragédie d’un peuple: histoire du peuple acadien, de ses origines à nos jours (3e éd., 2v., Paris, 1922), I, 408, 445–49; II, 315–28. C. J. Townshend, “Jonathan Belcher, first chief justice of Nova Scotia,” N. S. Hist. Soc., Coll., XVIII (1914), 25–57.