Notes on Parliamentary Precedents, [c. 6 February? 1765]
Notes on Parliamentary Precedents
AD: American Philosophical Society
Among Franklin’s papers are two sheets on which he entered notes about three acts of Parliament. One sheet, written on both sides, is badly torn at the top and down one edge. The other, of which he used only one side and which is in better condition, is a continuation of the first. The acts in which he was interested had granted to areas not previously represented in the House of Commons the right to send knights and burgesses: 28 Hen. VIII, cap. 26 (1535/6), relating to the principality of Wales; 34 and 35 Hen. VIII, cap. 13 (1542), to the county palatine of Chester; and 25 Car. II, cap. 9 (1672), to the county palatine of Durham. Each of these acts contains a preamble setting forth the reasons for granting representation to the region concerned and to certain boroughs or cities in it.
Franklin wrote out, in full or in abstract, what seemed to him the pertinent parts of these preambles, sometimes underlining the most significant phrases or passages, and he noted the grants of representation. He added his own commentary pointing out analogies to the situation of the American colonies: Wales had not been part of the “Realm” of England before being “incorporated” during the reign of Henry VIII, and neither were the colonies under George III; if the two counties palatine had been unjustly subjected to legislation and taxation without representation in Parliament, the same was true of the colonies.
Franklin did not date his notes and it is impossible to say with certainty just when he made them. The time was obviously between the beginning of the agitation over the Stamp Act in 1765 and the final breakdown of efforts to effect an accommodation between the mother country and the colonies in 1775. Almost certainly he did this work early in the period, when discussion of the relation between taxation and representation was first coming to the fore, and when other writers in Great Britain were also using historical precedents and analogies—the cases of Wales, Chester, and Durham among them—to bolster their arguments on one side of the debate or the other.
Franklin’s specific purpose in examining the statutes and making these notes is also unclear. He may have intended to use the material in one of his letters to the English press or in some separate pamphlet, but study of his known writings during these years reveals no direct use of these precedents, although the contention that the colonies were not a part of the realm appears several times, among others during his examination before the House of Commons on the repeal of the Stamp Act, Feb. 13, 1766. Another possibility is that he gathered this material to pass along to some other writer, such as his friend Thomas Pownall. The former governor of Massachusetts cited the three precedents (though not exactly as Franklin might have wished) in the third edition of his Administration of the Colonies, published in January 1766, and he enlarged upon them in the fourth and fifth editions of 1768 and 1774.1
A stronger possibility seems to the editors to be that these notes have some connection with a paper written by Franklin’s co-agent, Richard Jackson. An undated draft in Jackson’s hand endorsed by Franklin “Mr. Jackson’s Opinion of Parliamentary Power over the Colonies” survives among Franklin’s papers. It is printed directly following the present document. In Jackson’s draft he noted that Parliament had made laws “at all times” for the colonies, for the Kingdom of Ireland, and for Wales, Durham, and Chester. He went on to discuss the decisions to “blend” the last three “with the other parts of the Kingdom” and to give them representation in Parliament, and he particularly cited the preambles of the Chester and Durham acts. Carl Van Doren has suggested that Jackson drafted this paper at about the same time that he delivered a speech in the House of Commons, Feb. 6, 1765, opposing the pending Stamp Bill.2 One of the reports of this speech indicates that in its course Jackson produced copies of the Chester and Durham acts, particularly mentioning their preambles, as precedents for direct representation of the colonies in the legislative body that imposed taxes on them.3 The suggested date of his manuscript among the Franklin papers, therefore, may be at least approximately correct.
If there is a direct connection, as seems quite likely, between Franklin’s notes and the use of the same precedents in the speech and the draft manuscript of his friend and co-agent, it would be tempting to speculate as to which of the two men suggested to the other the potential usefulness of the examples of Wales, Chester, and Durham in the debate over taxation of the American colonies. The present editors, however, have been unable to find any conclusive external evidence of such a connection, however plausible it seems, so all that appears to be historically justified is to print these two documents from the Franklin papers, one by Franklin, and the other by Jackson, in direct sequence under the probable date of the Jackson paper, and to permit the reader to form his own judgment as to the relationship, if any, that may exist between them.
[1765–1775]
[27 Hen. VIII, cap. 26. Preamble. Albeit the Dominion and Principality of Wales is and ever hath been united to and under the Imperial Crown of this Realm, whereof his Majesty is very Head, nevertheless because in the Principality divers rights, usages and laws are far discrepant from the Laws and Customs of this Realm, and also because the] People of that Dominion [have a speech not consonant to the natural Mother Tongue] used in this Realm.
[And] some ignorant People made a Dis[tinction between the King’s] Subjects of the Realm and his Subjects of [Wales]
[His] Highness therefore
[Of his] Love to his Subjects of the Principality,
[And to] bring the Subjects of his Realm and those of his [Dominion] to Concord and Unity.
[By the] Advice of Lords and Commons, and Authority of the same hath enacted, that henceforth
[The] said Country or Dominion of Wales shall be incorporated with his Realm of England.
[It] seems clear, that before this Act, Wales was not under[stood as] within the Realm, tho’ subject to the same Prince. [And was] Subject to the Crown, tho’ not to the Parliament.
[To sub]ject it to Laws made by the Latter it was thought [right?] to give it all the “Freedoms, Liberties, RIGHTS [and Laws], that the King’s Subjects naturally born within this [Realm had] and enjoy’d.”
[And] among the rest § 29 the Right of sending Knights [and Burg]esses to Parliament.4
[The Sta]tute of the 34th and 35th. Hen. 8. cap. 13. Preamble sets forth, [that the] County Palatine of Chester had hitherto been excluded [from the] high Court of Parliament, to have any Knights and Burgesses [in the] said Court
By Reason whereof
[It] had sustained manifold Disherisons, Losses and Damages as well in [their Lands, Goods, and Bodies as in the good government of the Commonwealth of the country, and have been bound by the Statutes and yet had no Knights] or Burges[ses in the Court of Parliament for the said County Palatine, the inhabitants for] lack thereof have [often been touched and grieved with Acts and] Statutes made within the s[aid Court, as well derogatory unto the most] ancient Privileges and Liberties, and p[rejudicial to the common We]alth, quietness, rest, and Peace of the King’[s Subjects inha]biting within the same.5
For Remedy whereof
It is enacted that the County of Chester [shall have] two Knights, and the City two Burgesses, &c.
Which Knights and Burgesses were to [have like Author]ity, to all Intents and Purposes, like Lib[erties, Dig]nities, Privileges, &c. &c. with other Knig[hts and Burgesses.]
Notes,
The Preamble is part of the Chester [Petition.]
It charges preceding Parliaments w[ith doing the] County great Injustice, with wronging the [people by] depriving them of their Liberties, destroying [their Peace.]
These Charges are repeated or twice m[entioned?]
The Parliament does not deny or exten[uate them.]
But allows their Truth, and adopts the[m in the] Preamble of the Act.
If the County Palatine of Chester, belong[ing to the King, and] near him, under his Eye and immediate Protect[ion]
Might be and was oppress’d by Parlia[ment]
As they had no Representative there
How much more liable to such Oppr[ession may the] King’s Colonies in America suppose them[selves to be]
Without Representatives in Par[liament.]
It is probable the Parliamentary Authority [they ac]knowledge they had been bound by, was introduc’d by the King’s Governing them by Ordinances, first without mentioning Parliament, perhaps before Parliament existed; and afterwards to give greater Appearance of Authority, mentioning Parliament.
Statute 25. Car. II. c. 9. Preamble sets forth
That the Inhabitants of the County Palatine of Durham have not hitherto had the Liberty and Privilege of sending Knights and Burgesses to Parliament.
“Altho’ liable to all Payments, Rates and Subsidies granted by Parliament equally with the Inhabitants of other Counties who have Knights in Parliament.
“[And] are therefore concerned equally with others the Inhabitants of this Kingdom to have Knights and Burgesses in Parliament of THEIR OWN Election to represent the condition of their Country, as the Inhabitants of other Counties have,” &c.6
This contains the strongest Parliamentary Acknowledgments and Authority of this Truth.
That a People liable to Rates and Subsidies granted by Parliament, are THEREFORE intitled to have Representatives in Parliament
“Of their own Election.”
“To represent the Condition of their Country.”
Which could not otherwise be so well understood or taken care of.
1. An advertisement in London Chron., Jan. 14–16, 1766, announced that the third edition of Pownall’s treatise was published “This Day.” In the Appendix, Section III, pp. 5–9, Pownall briefly summarized the evolution of membership in the two Houses of Parliament and added that “towns, corporations, counties, &c.” not originally represented had, as they increased in power and interest, often “been called to a share in the Common-council of the realm, as were the Welch, the county palatine of Chester, and the county palatine of Durham.” But, in marked contrast to BF, Pownall went on (pp. 9, 12–13) to emphasize the point that, prior to the grant of representation, the people of these districts were nevertheless “liable to all rates, although they were not represented.” In the fourth and fifth editions Pownall used the Chester and Durham precedents to support his argument that “there must arise a duty in government to give, a right in the colonies to claim, a share in the legislature of Great-Britain, by having Knights and Burgesses of their own election, representing them in parliament.” He added, not very helpfully, that “It makes no difference in the matter of the truth, whether the government of England should be averse to the extending this privilege to the Colonies, or whether the Colonies should be averse to the receiving of it.” 1768 edit., pp. xiv-xv, xxiii-xxxi, 138–47; 1774 edit., I, x-xi; II, 166–72.
Some other writers of the period also cited these precedents, perhaps most notably Edmund Burke in his well-known speech on conciliation, March 22, 1775. He found analogies, as Franklin and Pownall had done, between Wales, Chester, and Durham and the American colonies, and then, differing sharply from Pownall, offered to the House of Commons a series of resolutions in favor of the granting of financial aids to the Crown by the colonial assemblies rather than by act of Parliament. The Writings & Speeches of Edmund Burke (Beaconsfield edit., N.Y., 1901), II, 146–62. In a letter to Burke, May 15, 1775, BF commented: “I hear your propos’d Resolves were negativ’d by a great Majority; which was denying the most notorious Truths; and a kind of rational Lying, of which they may be convicted by their own Records.” Sheffield Central Library.
2. Carl Van Doren, ed., Letters and Papers of Benjamin Franklin and Richard Jackson 1753–1785 (Phila., 1947), p. 193.
3. Jared Ingersoll to Thomas Fitch, Feb. 11, 1765, New Haven Colony Hist. Soc. Papers, XI, 309.
4. Section 28 of the act provided for two knights to be elected to Parliament from the shire of Monmouth and one burgess from the borough of Monmouth. Section 29, cited here, provided for one knight from each of four additional shires specifically named and from any other shires in Wales, and one burgess from every shire town, with a single named exception.
5. The preamble was printed in quotation marks in the act. It was, as Burke pointed out in his speech, a direct quotation of the petition by the people of Chester to the King, “all rugged as it was, without softening or temperament, unpurged of the original bitterness and indignation of complaint.”
6. The words in quotation marks here are a slightly shortened extract from the preamble of the act, all of which was printed within quotation marks. That preamble, like the one in the Chester act, was probably also incorporated directly from a petition to the King. Gaillard T. Lapsley, The County Palatine of Durham (N.Y., 1900), pp. 299–300, points out that in the seventeenth century “the county of Durham, although without parliamentary representation until 1673, bore its share of the financial burdens of the kingdom,” and its sheriffs were required to account to the Exchequer.