To Thomas Leech and Assembly Committee of Correspondence
LS: Yale University Library; draft (incomplete): American Philosophical Society6
London June 10, 1758
In mine of May 13.7 I gave you a particular Account of the Hearing before the Attorney and Sollicitor General, on a Reference of Smith’s Petition; they have not yet made their Report, and would now I hear excuse themselves from doing it, as unnecessary, since they have heard that the Prisoners are discharged. But they are still solicited by Mr. Penn and Mr. Moore8 to report, on an Allegation that they have Letters advising that Warrants are issued for taking them up again. None of my Letters from Pennsylvania mentioning any Thing of this, I have ventured to say I doubt the Truth of it. Whether they will report or not is uncertain: But if they should report against us, I am determined to dispute the Matter again before the Council.9
I send you herewith a Copy of the Notes I furnish’d our Sollicitor with, when drawing his Brief, a Copy of the Brief itself; a Copy of some Remarks on the Reflections thrown upon the Assembly by the Council at the first Hearing, as being Quakers and therefore against Defence, and as bearing Malice against Smith because a Clergyman of the Church of England, and against Moore because he petition’d for Defence, &c. These I gave to our Council before the 2d. Hearing when they were to speak, and they made a good Use of them. I furnish’d also a Number of Cases from the Votes of Assemblys in the other Colonies, showing that they all claim’d and exercis’d a Power of committing for Breach of Privilege, &c. but of this Paper of Cases, I have no Copy by me.1
Mr. Charles at my Request has drawn the State of a Case in order to obtain Opinions of eminent Lawyers how far our present Privileges would be affected in case of a Change of Government by our coming immediately under the Crown. I send you a Copy of this Case, with the Opinion of one Council upon it, who is esteem’d the best acquainted with our American Affairs, and Constitutions, as well as with Government Law in general: He being also thoroughly knowing in the present Views of the leading Members of the Council and Board of Trade, and in their Connections and Characters, has given me withal, as a Friend, some prudential Advice in a separate Sheet distinct from his Law Opinion, because the Law Opinion might necessarily appear where he would not care the Advice should be seen. I send you also a Copy of this, and should be glad of your Sentiments upon it.2 One Thing that he recommends to be done before we push our Points in Parliament, viz. removing the Prejudices that Art and Accident have spread among the People of this Country against us, and obtaining for us the good Opinion of the Bulk of Mankind without Doors; I hope we have in our Power to do, by Means of a Work now near ready for the Press, calculated to engage the Attention of many Readers, and at the same time efface the bad Impressions receiv’d of us: But it is thought best not to publish it till a little before the next Session of Parliament.3
The Proprietors are determin’d to discard their present Governor, as soon as they can find a Successor to their Mind. They have lately offer’d the Government to one Mr. Graves, a Gentleman of the Temple, who has for some time had it under Consideration, and makes a Difficulty of accepting it: The Beginning of the Week it was thought he would accept, but on Thursday Night I was told he had resolved to refuse it. I know not, however, whether he may not yet be prevail’d on. He has the Character of a Man of good Understanding and good Dispositions.4 The Intention to appoint a new Governor was to have been kept a Secret, that Mr. Denny might not hear of it too soon; but it was not well kept.5
Here is a Prospect of a great Harvest, and Corn falls in Price; if the Grain is well got in, ’tis thought His Majesty may be prevail’d on to grant Leave by Proclamation for Exporting Corn from the Colonies to Neutral Countries.6
I should be glad to know what is intended to be done with Regard to the Loss of the Servants.7 If we are to make any Application here for Redress, the Lists and Proofs should be sent.
Please to present my best Respects to the Assembly, and believe me to be, with sincerest Regard and Esteem, Gentlemen, Your most obedient humble Servant
To the Speaker, and Committee of Correspondence
June 26. The Notice I had of this Opportunity is too short, to get Copies ready of the Papers mention’d, but I hope Robinson will arrive safe with them.8
Endorsed: Benja. Franklin’s Letter June 10th. 1758.
6. Signature and postscript of LS and all of surviving draft are in BF’s hand; main text of LS is in WF’s hand.
7. See above, pp. 60–8, for the letter, and pp. 28–51, for the hearings on William Smith’s petition referred to below.
8. Daniel Moore; see above, p. 62 n.
9. Penn’s solicitor, Ferdinand J. Paris, fully explained the delay to William Allen, June 10, 1758: He had applied “Incessantly” to Charles Pratt (the attorney general) and to Charles Yorke (the solicitor general) for their opinions, and found Yorke “most ready, and most clear, in his Opinion, that the Comittment was arbitrary, and illegal, but he doubted how and in what manner the King could order Mr. Smith’s Release.” Pratt, however, “found many doubts, he was ill, he was busy; he agreed, also, that the King could release the prisoners, but he was very unwilling, that that should be order’d, upon a written Report of his. … This Gentleman is a very good Lawyer, and has been Suddenly promoted, first, to be of Counsell for the King, and, presently after that, to the Office which he now holds, and to which he was raised, over the Head of the present Solicitor General. Althô such his promotion was very agreeable to Some, Yet it was not so to All, of our Grandees, And it is whisperd, that there is an intention, to put another Gentleman into his Offices; And I am the most mistaken, that ever I was in my life, if he does not entertain some Suspition, that this [matter?] was referred to him, as a means to found or assist, his own Removal; And, for that Reason, the various delays, doubts, and shifts, which he has given, were made use of by him.” Pratt had also noted that Paris’ lists of precedents for royal release of prisoners irregularly held (fourteen cases, from 1680 to 1756; Penn Papers, Hist. Soc. Pa.) all had to do with acts of governors and courts; Paris confessed he had been unable to find precedents involving imprisonments by an Assembly. (BF’s optimism about the case’s result depended principally on that fact.) Paris then threatened to appeal the case directly to the Privy Council, whereupon Pratt promised to “consult his Superiors, whether he should, or should not, make a Report.” Two days later, Paris and the Pa. agents learned that the prisoners had been released. Richard Partridge then argued that no opinion was required, and Pratt readily concurred. On June 2, however, on learning that Smith had been recommitted (the Assembly had issued a warrant on April 26, but it was not executed), Paris renewed the threat to take the case to the Privy Council. See below, p. 296, for BF’s explanation of the delay. Eventually Pratt and Yorke delivered an opinion, approved by the Privy Council, June 26, 1759, condemning the Assembly for its irregular, tyrannical conduct toward Smith. Acts Privy Coun., Col., IV, 375–85; Pa. Col. Recs., VIII, 438–46.
1. All these documents are printed or explained above, pp. 28–51.
2. See above, pp. 6–27, for Robert Charles’s “State of a Case,” and Richard Jackson’s legal opinion and private sentiments.
3. The work referred to, An Historical Review of the Constitution and Government of Pensylvania …, written by Jackson with assistance from the Franklins, appeared in London, May 29, 1759. Thomas Penn was disdainful of the Franklins’ propaganda efforts: “I suppose you will hear that Mr. W. Franklin has said many imprudent things, but no body will answer him yet tho’ he should write again. Appealing to the Publick will always displease the Administration and for that reason I shall not practice it but let them write what they please.” To Richard Peters, May 13, 1758; Penn Papers, Hist. Soc. Pa.
4. The last page of the draft is missing, hence earlier printed versions, all taken from it, end here.
5. See below, pp. 94–5, for the proposed appointment of William Graves as governor of Pennsylvania.
6. No such proclamation was issued; see above, VII, 373, and below, p. 106.
7. On indentured servants in the army, see above, VII, 224–8.
8. See n 2, this page, for Captain Robinson.