WAS BELCHER ACTING ILLEGALLY IN DEPORTING ACADIANS ?
J. A. Chisholm
(The Chronicle, Halifax, le 11 mars 1914)
To the Editor of the Chronicle :
The sketch of the life and public services of Chief Justice Belcher, which the Chief Justice, sir Charles Townshend, read at the meeting of the Nova Scotia Historical Society on Friday evening, is a valuable and important contribution to the political history of the Province. Prepared after careful and full investigation into every source from which information could be gleaned, and presented, as might be expected, in attractive form, it was fitting that a resolution was passed at the conclusion of the meeting, requesting the early publication of the paper in the printed records of the society.
Belcher was a highly educated man. He was likewise a well trained and careful lawyer. Very shortly after he assumed the duties of his public office in Nova Scotia, he pointed out to the Governor and the other members of the Council, he himself being a member, that that body exceeded its powers in passing ordinances ; imposing taxation on the people and otherwise regulating their civil duties. No such power was given to the Governor in his Commission and instruction and all the powers the Governor had were derived from these documents. His powers were stated in clear and unmistakeable terms in the Commissions and if he assumed powers not provided for in its Commission, his action therein was illegal and void. The Commission authorized the Governor to constitute his Council to assist him in the Government of the country, and the Council was accordingly constituted ; but the Commission continued to be the sole charter of his powers until an Assembly should be summoned.
The opinion of Chief Justice Belcher was concurred in by the law officers of the Crown, one of whom afterwards became the famous Lord Mansfield, and to that opinion we owe very largely the establishment so early in the history of our Colony of our representative institutions. In this matter Belcher displayed the caution and spirit of a careful lawyer and legislator ; he manifested a feeling of solicitude and anxiety that the body of which he was a member - the Governor and Council - should performs no act, should adopt no policy and should pass no ordinance which was not fully authorized by law.
There was, however, another matter in which he took a large share of responsibility, because it had his approval and support as a member of the Council. With respect to this matter, one may fairly ask upon what legal grounds Chief Justice Belcher based his actions ? Perhaps to illustrate the point I may be permitted to refer to some events of later date in the history of what is now Canada. It will be remembered that in 1837 and 1838 the Colonies of Upper and Lower Canada were in a state of disorder. A number of the inhabitants broke out in open revolt. They took up arms against the Queen's authority, and human blood was shed and human lives were sacrificed. The men who defied the authority of the Crown - no matter what their grievances were, for that is neither here nor there - were, in the eyes of the law, rebels ; and they had rendered themselves liable, upon conviction, to the severest penalties which the law prescribes for those who are guilty of the crime of treason. In January 1838, the Constitution of Lower Canada was suspended ; and in order to bring about the pacification of the country and some sort of order out of the welter of affairs, the Home Government sent out Lord Durham as Governor General and High Commissioner, investing him with exceptional powers in dealing with the affairs of the country. The position briefly, was open rebellion , several of the leaders of the rebellion in custody, the Constitution suspended and the Governor in Chief and High Commissioner invested with large powers in order to put affairs right. One of Lord Durham's first acts was to pass an ordinance, directing that the prisoners who took part in the rebellion should be deported to Bermuda, a British Colony, beyond his jurisdiction.
When news of this ordinance reached England two eminent English statesman, Lord Brougham and Lord Lyndhutt, declared in speeches in the House of Lords, that the ordinance was illegal. The Attorney-General, Sir John Campbell, and the Solicitor-General, Sir R. M. Rolfecach of whom later became Lord Chancellor of England, gave a rendered opinion to the effect that the ordinance so far as it dealt with the transportation of the prisoners to Bermuda was "beyond the power of the Governor and his special Council, and void"
The following brief extracts from some of the speeches in both Houses of Parliament will show how the ordinance was regarded by some of the most enlightened statesmen in England :
Lord Broughman said : "No power to inflict pains and penalties upon individuals who had not been brought to trial was conferred upon Lord Durham. General Laws for the good of the Colony he might make, but subject to one exception which retained him from altering any Act of the British Parliament".
Lord Ellenborough said : "The smallest deviation from constitutional principles on the part of a constitutional government was fraught with danger. Such governments as had a different origin might indeed venture on courses consistent with despotism, but the whole transaction was alien from the spirit of British jurisprudence".
The Duke of Wellington said : " Steps should be taken to set the Government of Canada right in the proceedings which appeared to be totally illegal. Lord Durham did not appear to know what he was about. It is quite impossible that the people of this country could suffer any man to be driven into banishment without trial. "
Lord Chief Justice Deaman in presenting himself for the first time in the House said : "My objections to the ordinance are founded on no technical point of law, but are directed to a gross violation of the constitution."
Sir John Campbell said : "The banishment of the prisoners to Bermuda was a legislative act, but the legislative power of the Governor was limited to the borders of Lower Canada and it was therefore in vain to contend for the legality of that transaction."
Lord Durham's great mistake as to his powers resulted shortly after in his downfall as a public man.
The opinion of these great men - four of them became at one time or another Chancellors of England - have never been seriously questioned, and it may be assumed that these opinions give a correct statement of the English law as to the right of Colonial Governors to order deportation. If it was good law in 1838, why was it not good law in 1775 (sic pour 1755) ? In 1775 (sic ibid.), according to Chief Justice Belcher, it was illegal for the Governor and his Council to impose a tax of a few pence on a gallon of rum or a pound of tobacco. If the governor and Council were so restricted in their powers, so impotent in regulating matters of mere local finance, where did they get the legal authority to pass resolutions ordering the deportation from Nova Scotia to other Colonies beyond their jurisdiction of several thousand of the inhabitants of the Province, most of whom were women and children, and none of whom had been adjudged guilty of any crime known to English law ? If it was illegal for Lord Durham to order the banishment of men who were caught red-handed in rebellion, surely it may be argued that it was at least equally illegal for Lawrence and Belcher to order the banishment of numerous men, women and children who were guilty of no crime.
I have no desire - and, indeed, I do not feel qualified - to discuss the expulsion of the Acadians as a matter of public policy. That is not the point I am raising. I confine myself entirely to the question of the legality of the act. If Belcher considered it legal to deport the Acadians, on what grounds did he base the opinion that it was within the power of the Governor and his Council to so act ? If it were beyond the Govenor's powers and illegal, how could Chief Justice Belcher justify his own action as member of the Council and Judge - in participating in an illegal act ? An answer to these questions seems to me to be necessary, when his life and works are under review.
J. A. CHISHOLM
March 10th, 1914.