To William Franklin
ALS (letterbook draft): Library of Congress
London, July 25. 1773
I wrote to you pretty fully per Osborne,9 since which I attended the Hearing at the Council Board against the Report of the Board of Trade on the Complaint of Mr. Livius.1 I think I sent you a Copy of the Complaint and Answer among the Pamphlets, containing also the Report.2 The Time was only sufficient to hear the Counsel for Govr. Wentworth and against the Report. They seem’d to make a pretty good Case of it, but there is no judging till the other side is heard, which will be next Thursday. Gilbert Francklin, whom you may remember as Partner to Anthony Bacon, is making Interest to be Governor in Case Wentworth is removed, and some of the Board of Trade are his Friends.3 It is doubtful what the Issue will be; but the Expence must be great to the Governor tho’ he should be continued, and Livius if he fails will be half ruined.4
I paid into the Hands of Mr. Walpole yesterday Six hundred Pounds, being for Mr. Galloway’s Share, yours and mine, £200 each, which is for the Purchase-money, and the overplus towards the Charges.5 I enclose your Receipt. The Idea given me was that the Patent will pass the Seals in a few Days, when the Money is to be paid; but I have just now learnt from the Council Office that the Form put into the Attorney General’s Hands by Mr. Wharton, is objected to by the Attorney on Account of its making the Proprietors all joint-tenants, so that those who die will lose their Shares and the Survivors take, which the Attorney supposes could not be the Intention of the Grantees, and for these Reasons he and the Sollicitor General have return’d the Draft to the Council disapprov’d,6 so that there must be a new Reference, for which a Council must be got together, and that can scarce be done till the next Meeting of Parliament. Before I heard this I ask’d Maj. Trent who drew the Draft. His Answer was, it was somebody Mr. Wharton got to do it, he could not tell who. Dagge is dissatisfied that he was not consulted and thinks it should have been shown to Mr. Jackson, to him, and to all of us. Blair, Clerk of the Council, made a Remark on the Occasion a little particular. That Man, says he, speaking of Wharton, is too fine, he outwits himself. I want to see the Draft, that I may know what this meant.7 Keep all this to yourself.
I have sent you in Capt. Sutton a Box containing two Skillets and two small Kettles of Bellmetal,8 the latter being recommended here rather than Skillets, but if you don’t chuse them send them to your Sister, or one of each. The Box is fill’d up with some Pamphlets, which you may send to my House, or keep them till my Return.
There is another Box for you from Mr. Sergeant which I receiv’d with the enclos’d Note.9 I think he told me it was to contain a little Present of Wine. My Love to Betsey. I am ever Your affectionate Father
I shall write to Mr. Galloway per the Packet of next Week.1 My Respects to him.
9. BF’s letter of July 14, above, went by Peter Osborne, master of the Pa. Packet, who left Deal on July 21: London Chron., July 20–22, 1773.
1. The case of Peter Livius (1739–95) made a stir at the time. He was the son of a German merchant at Lisbon, but was educated in London. After a brief stay in Portugal he returned to England, where he married the daughter of Col. John Tufton Mason, a proprietor of New Hampshire and one of its greatest landholders. Livius sought his fortune in the province, and was soon a member of its Council and a judge of the Court of Common Pleas. He was dismissed from his judgeship in 1771 by Gov. Wentworth, an old acquaintance of WF (above, XIV, 159 n, 178–8), and went to England to bring charges that he hoped would procure the Governor’s removal. One of the charges—of particular interest to speculators on the one hand and colonial governors on the other—was that many of Wentworth’s land grants had been ultra vires. Livius eventually lost his case. Acts Privy Coun., Col., V, 370–2; VI, 526–7, 529–36; Board of Trade Jour., 1768–75, pp. 311–12, 338, 341–3, 346–7, 349–52, 356–7, 361, 364, 373; Lawrence S. Mayo, “Peter Livius the Trouble-maker,” Colonial Soc. of Mass. Pub., XXV (1924), 125–9; Sibley’s Harvard Graduates, XIII, 261–70.
2. The Memorial of Peter Livius … to the Lords Commissioners for Trade and Plantations; with the Governor’s Answer and the Memorialist’s Reply … ([London,] 1773).
3. Gilbert Francklyn, or Francklin, was in partnership with Anthony Bacon, a former Marylander who was a prominent London merchant, from 1759 to about 1773: Lewis B. Namier, “Anthony Bacon, M.P.,” Jour. of Economic and Business History, II (1929–30), 24–5. But Francklyn seems to have spent much of his time in Antigua and Tobago, and served for a while on the Tobago Council. He was a member of and propagandist for a society of West Indian planters, and wrote a number of pamphlets on the slave trade. Acts Privy Coun., Col., V, 506, 574; VI, 589–91; Board of Trade Jour., 1768–75, p. 263; 1776–82, pp. 376, 403, 407, 419–421; Vere L. Oliver, The History of the Island of Antigua … (3 vols., London, 1894–99), I, 258; II, 371, 373; Lowell J. Ragatz, A Guide for the Study of British Caribbean History … (Washington, 1932), pp. 295, 504–5. Why Francklyn should have coveted the governorship of New Hampshire we cannot imagine.
4. Livius was resilient. When he lost his case he remained in England for a time, and was then sent to Quebec as a judge. From 1776 to 1778 he was chief justice of the province; then he was dismissed by the governor as he had been in New Hampshire. Again he went to England to seek redress, this time successfully: his office was restored, but he never returned to Quebec. A. L. Burt, “The Tragedy of Chief Justice Livius,” Canadian Hist. Rev., V (1924), 196–212.
5. For BF’s financing of WF’s and Galloway’s shares in the Walpole Co. see above, XIX, 140. The Company had initially offered £10,460 7s. 3d. for the tract, a fifth to be paid when the grant issued under the great seal and the rest in annual installments; but by 1773 the whole sum was to be paid on issuance. Above, XVII, 9; Kenneth P. Bailey, ed., The Ohio Company Papers … (Arcata, Cal., 1947), p. 276. The Company was now confident enough of success to collect the cash. BF paid £177 16s. 10d. per share in purchase money and £22 3s. 2d. for expenses. Jour., p. 50.
6. Under joint tenancy the last surviving proprietor would in theory acquire all the Company’s holdings; under the alternative, tenancy in common, each proprietor’s heirs would acquire his rights. The law officers also took exception to the vagueness of the boundaries and of the responsibility for paying quitrents to the crown. The question of what “the Draft” was that they disapproved is discussed in the next note.
7. William Trent and Samuel Wharton need no introduction. Henry Dagge (above, p. 310 n) was a lawyer for the Company, and one of its most prominent legal members was Richard Jackson, counsel to the Board of Trade. William Blair had been clerk of the Privy Council since 1735, commissioner of stamps with one short interval since 1737, and clerk of the Signet Office since 1748; he held the first two positions in 1778, and the third until 1782. Joseph T. Haydn, The Book of Dignities … (3rd ed., London, 1894), p. 283; John Chamberlayne, Magnae Britanniae Notitia … (London, 1735), p. 42 of second pagination; The Royal Kalendar … (London, 1778), pp. 70, 132; ibid., 1782, p. 108.
Blair’s comment on the draft leaves us even more in the dark than BF was. The Privy Council had instructed Attorney General Thurlow and Solicitor General Wedderburn to review the report from the Board of Trade, as explained in the note on BF to Foxcroft above, July 14. The opinion that the law officers delivered on July 16, a copy of which is in the Library of Congress, gives the impression of being on that report and on nothing else; see Acts Privy Coun., Col., V, 210; VI, 543, 556. BF is saying something quite different—that the opinion took exception to points that were not in the Board’s report but in another document, Wharton’s draft (which we have not found) of a grant to the Company. BF, it appears, was partly right. The law officers ignored the large section of the report that dealt with the establishment of Vandalia, and considered only the terms of the grant. Here they objected to one new condition and two old ones. The new, joint tenancy, the Board had not mentioned and Wharton clearly had. The old were in the report, quitrents and boundaries, the latter in the exact wording that the Company had used in 1770. The opinion did not impress the Privy Council. The following October its committee responded by ignoring joint tenancy and insisting that the grant, except for a slight change in quitrents, be drawn up as the Board had proposed it. Ibid., V, 210. BF was correct, this evidence suggests, in believing that Wharton introduced into the governmental machinery a draft grant of his own, which by raising the issue of joint tenancy gave Thurlow and Wedderburn a point of attack. If so the lobbyist was indeed “too fine”: he contributed to a delay that proved fatal. It again postponed the Company’s hopes, and the rising American crisis engulfed them.
8. See above, p. 308.
9. WF had met John Sargent when in England with BF (above, VII, 321–2), and had apparently, like BF, established lasting relations with the banker.
1. The letter is below, Aug. 3.