UPHAM, JOSHUA, judge and politician; b. 3 Nov. 1741 in Brookfield, Mass., second son of Dr Jabez Upham and Katharine Nichols; d. 1 Nov. 1808 in London, England.
Joshua Upham was both the most typical and the least typical of the band of loyalist brethren who formed the first governing class of New Brunswick. In terms of birth, education, wealth, profession, and marriage, he was a classic example of the Massachusetts tory élite which supported the British cause during the American revolution. At the same time he displayed a genuine sympathy for the grievances of the American colonists, and in his subsequent career he manifested a sensitivity to popular needs and a willingness to question government policy which stamp him as unusual among his loyalist colleagues.
After graduating from Harvard College in 1763, Upham began his legal career in Brookfield. On 27 Oct. 1768 he married Elizabeth Murray, daughter of the prosperous John Murray of Rutland, and he later took her brother Daniel into partnership with him. Upham’s position in the debate preceding the American revolution was ambivalent. Trying desperately to placate both sides in order to retain his pleasant mode of life, on the one hand he supported the non-importation and non-consumption measures urged by the aggrieved patriots, while on the other he signed public addresses of homage to Governor Thomas Hutchinson and Lieutenant-General Thomas Gage*. Called before the Brookfield committee of public correspondence in 1775 to explain his political principles, he stated his willingness to submit to the resolution of the majority of his compatriots even though personally he opposed American independence. Yet he did not become a declared loyalist until 1777, when a Massachusetts law required all lawyers to take the oath of allegiance to the new state. Unwilling to comply, Upham sold his property and made his way to New York City to join the British military effort.
Once committed, Upham became an exemplary loyalist and soldier, serving as an officer on several raids in New England. In January 1779 he was appointed by the commander-in-chief, Sir Henry Clinton, inspector of refugee claims on Long Island, and the following year he was authorized to raise a regiment of Associated Loyalists there and with them was placed in command of Fort Franklin at Lloyd Neck. He ended the war as a major in the King’s American Dragoons and an aide-de-camp to Sir Guy Carleton. Since the war had sapped his financial resources, in late 1783 he decided to join his patron Carleton in London in hopes of getting a government post in Nova Scotia. Yet he made clear to his American friends that he left his homeland out of necessity, not malice.
Upham was a vigorous supporter of the movement to partition Nova Scotia and establish a separate loyalist province north of the Bay of Fundy. When the province of New Brunswick was in fact established in 1784, he received an appointment as a judge of the Supreme Court, with a salary of £300 per annum, and a seat on the Council. He arrived in his new home that November. Upham’s initial years in New Brunswick were marred by personal hardship. His wife had died in 1782, leaving him with five children, and he himself was afflicted with rheumatism which gave him constant pain. None the less, he performed his duties on the Supreme Court and Council faithfully, and he developed his 1,000-acre farm near French Village, not far from Fredericton. In 1792 he remarried, his wife being Mary Chandler, sister-in law of Amos Botsford, speaker of the House of Assembly.
Upham was involved in three notable issues during his New Brunswick years. The first was the dispute between the assembly and the Council over whether assembly members should be paid for attendance. Despite the disapproval of the lieutenant governor, Thomas Carleton, Upham in company with Daniel Bliss strenuously opposed the Council’s stand against payment and defended the constitutional right of the assembly to control appropriations. In 1800 he became involved in another controversial question when the legality of slavery in New Brunswick was tested in the Supreme Court. Upham voted to uphold it, a natural action since he was himself a slave-owner, but the court was divided on the matter and no decision was rendered [see Caleb Jones]. Perhaps Upham’s most distinguished service to the province occurred in 1807, when he was deputized by the Council and the assembly to go to England to protest the fact that public officials in New Brunswick were not being treated as well as their counterparts in Upper and Lower Canada. Specifically, he asked the British government to put the salaries of the Supreme Court judges on a par with those of the other provinces, to make their appointments run during good behaviour, to give New Brunswick separate legislative and executive councils, and finally, and most interestingly, to appoint a governor general for the four colonies of Nova Scotia, New Brunswick, Prince Edward Island, and Cape Breton. Upham’s petitions containing these requests graphically describe the rigours endured by public servants in backwoods New Brunswick, the province’s resentment at its inferior treatment by the imperial government, and the loyalists’ continuing sense of pride in their record of service to the empire.
Although Upham was successful in getting the judges’ salaries raised, he did not live to enjoy the victory. He died in London as he was preparing to return home, survived by his wife and seven children. One of his daughters married John Murray Bliss*, who became solicitor general of New Brunswick and a judge of the Supreme Court; another married John Wesley Weldon, also a well-known lawyer and politician; his son Charles Wentworth became a prominent Unitarian clergyman, congressman, and historian in Massachusetts. In recognition of Upham’s services the New Brunswick House of Assembly granted £200 to his widow and £100 to an unmarried daughter of his first marriage.
The few personal papers that remain reveal Upham to have been a man of unusual sublety, grace, and conviction. To date, he has been a footnote in New Brunswick’s recorded history, but his personal qualities and record of service clearly mark him out for larger print.
Mass. Hist. Soc., Henry Knox papers, Joshua Upham to Knox, 1 Dec. 1783; Timothy Pickering papers, Joshua Upham to Pickering, 18 Nov. 1783. PAC, MG 23, D1, ser.l, 4: 1318–21. PRO, CO 188/13; PRO 30/55 (copies at PAC). UNBL, MG H2, Joshua Upham to Edward Winslow, 27 Aug. 1783. American arch. (Clarke and Force), 4th ser., 2: 852. N.B., Legislative Council, Journal, [1786–1830], 1: 204–6, 3 Feb. 1797. Royal commission on American loyalists (Coke and Egerton). Jones, Loyalists of Mass. Shipton, Sibley’s Harvard graduates, 15: 495–96, 499–500. F. K. Upham, The descendants of John Upham, of Massachusetts, who came from England in 1635, and lived in Weymouth and Malden; embracing over five hundred heads of families, extending into the tenth generation (Albany, N.Y., 1892). Condon, “Envy of American states.” J. W. Lawrence, The judges of New Brunswick and their times, ed. A. A. Stockton [and W. O. Raymond] ([Saint John, N.B., 1907]).