William Whately’s Chancery Suit against Franklin: I. The Bill in Equity
Summary of DS in the Public Record Office; copy: State House, Boston5
Franklin considered this suit as a stab in the back. He believed that it was the consequence of his revealing his part in the affair of the Hutchinson letters, which he had done in order to end the quarrel between John Temple and William Whately6 and which should have earned him the gratitude of both. Whately was further in his debt. The banker had inherited an ancestral land claim in Pennsylvania, about which at some point he had asked Franklin to inquire. The American had obliged, got legal opinion that the claim was still valid and worth at least £5,000, so informed Whately the previous November (apparently their first meeting face to face), and then helped him in advancing the claim. The banker’s return for this kindness, without any forewarning whatsoever, was “to clap upon my Back a Chancery Suit.” Franklin was convinced, rightly or wrongly, that the ministry had engineered the suit in order to harass him. He had never been sued before, and knew nothing about the maze of Chancery procedure; his account of the episode shows between the lines that he was worried—with good cause—by the danger that he would be compelled to testify in a matter on which he was pledged to secrecy.7 Over the next fifteen months that danger slowly but surely increased, until it may even have been a reason why he left England when he did.
Whately, whether or not he was serving the administration, had reasons of his own to seek redress for the wrong done his brother and himself. Rumor about the Hutchinson letters cast doubt on Thomas Whately’s carefulness, if nothing more, in guarding the confidentiality of his correspondents, and involved William in the public argument that culminated in his duel with Temple. The banker was doubtless in no mood to be grateful for help with his land claim. He had “dark Insinuations drop’d to me and distant Menaces thrown out (meant perhaps only to deter me) of intended Publications affecting my late Brother,” and his peace of mind, he declared, depended on getting to the bottom of the mystery. He would proceed coolly and firmly, without impugning any one’s character or reaching conclusions based on mere suspicion, and undeflected by “any artfull and doubtfull Declarations” intended to mislead him. “Dr. Franklin’s publick Avowal being sufficient to justify a judicial Proceeding on my part against him at least, I have as the immediate Representative of my late Brother filed a Bill in Chancery to purge that Gentleman on his Oath as to the Means by which he may alledge he became possessed of these Letters and to restore them to me as being now my Property.”8
Franklin’s public avowal, on December 25, 1773, may have strengthened Whately’s grounds for suing but could scarcely have been what decided him to sue. The interval between the avowal and the beginning of the action was less than two weeks. It defies probability that Whately made up his mind and engaged and briefed counsel, who thereupon drew up a long and enormously detailed bill, conferred with him on it, and then filed it, all within a fortnight; preparing Franklin’s answer engaged him and his counsel for three and a half months.9 Whately, then, must have known of the American’s involvement long before the public did, probably before the duel and possibly by the time the two men met in November. How he knew is one of the many mysteries that still cloud the affair.
The purpose of the suit, to judge by the bill, was twofold: to protect Thomas Whately’s reputation by forcing the defendent to disclose what had happened, by securing any letters that were not yet in print, and by enjoining further publication of those that were; and to obtain whatever profit had accrued from the printing. The bill was what would now be called a fishing expedition, and it cast the widest possible net. A few of the questions asked were designed to obtain admission of demonstrable facts, others to explore well grounded suspicions, and still others to test conjectures that were wildly erroneous; the plaintiff in Chancery, Franklin remarked, “is allowed to lie as much as he pleases.”1 The document, like much legal liturgy of the period, is innocent of punctuation and cavalier about syntax; and a fog of verbosity often hides the meaning. We have therefore condensed and paraphrased the original.2
<7th January 1774. To the Right Honourable Lord Apsley, Lord High Chancellor of Great Britain:3
Your petitioner, William Whately of London, banker and administrator of the estate of the late Thomas Whately, deceased, shows unto your Lordship that:
Thomas Whately, late of the parish of St. James, Westminster, carried on a correspondence with the Hon. Thomas Hutchinson and the Hon. Andrew Oliver of Boston in New England. Included in this correspondence were six letters from Hutchinson dated between June 28, 1768, and October 10, 1769, and four letters from Oliver dated between May 7, 1767, and August 12, 1769. At the time of Whately’s death these letters were either in his possession or had recently been given by him to some other person, to be read and safely returned. Shortly before or after his death they came, by means unknown to your petitioner and without his or Thomas Whately’s consent, into the possession of Benjamin Franklin or some other person or persons working with him or at his direction.
Franklin, who is or has lately been in the printer’s trade, has caused the letters to be published without the knowledge or consent of Thomas Whately, your petitioner, Hutchinson, or Oliver. Franklin or some one else caused the addresses to be defaced, and transmitted the letters to friends or agents in Boston or elsewhere for publication. Many copies were printed there, and many sent back to London to Franklin and his confederates.
Franklin corresponded with divers persons in Boston and elsewhere about the letters, arranged for their publication, and directed that they be concealed from certain persons who might have given your petitioner information about them. Franklin or others have acknowledgments of the receipt and publication of the letters. He still has in his possession some of the original letters and copies of those printed, and threatens to publish them in this kingdom. Your petitioner has applied to him to deliver the originals and all copies in his custody, to desist from publication, and to account to him for the profits thereof; but Franklin, confederating with persons unknown but who should be discovered and made parties to the suit, refuses to deliver the originals and copies or to reveal where they are or how, from whom, or by whose assistance they came into his possession, or to whom he transmitted them, and pretends that he gave a valuable consideration for them to some person or persons he refuses to name, and that your petitioner has no right to or interest in them. This pretension is contrary to equity and good conscience and tends to your petitioner’s manifest injury.
Therefore, because strict rules of common law offer no remedy to your petitioner, only by the assistance of a court of equity can he make discovery of the matters mentioned, compel redelivery of the letters and copies, and restrain further publication. To that end he begs that Franklin be made to answer in particular the following questions:
If Thomas Whately is dead, when did he die?
Did your petitioner or any one else have administration of his estate?
Was there a correspondence between Thomas Whately, Hutchinson, and Oliver, and if so for how many years?
During those years did not Whately reside in England and Hutchinson and Oliver in Boston?
How many letters did Whately receive from each, and in particular did he receive the ten letters in question?
Were they in his or some one else’s custody when he died, or had he delivered them to some person or persons for perusal and return, and if so when and to whom?
Did they come into Franklin’s possession, and if so when, where, and by the hands of what person or persons did he see and obtain them?
Did he or such person or persons receive them with the knowledge or consent of Thomas Whately or your petitioner?
Does not Franklin now, or did he not lately, carry on the trade of a printer?
Did not he or some other person, and if so who, publish the letters without the consent of Thomas Whately, your petitioner, Hutchinson, or Oliver?
Which of the letters was addressed to Thomas Whately, and when, by whom, and for what purpose was the address removed?
Did Franklin transmit such letters to friends or agents in Boston or elsewhere in America for the purpose of publication, or for what other purpose, and what letters were sent and to whom?
Were copies of the letters, not printed or disposed of in Boston, sent from there to Franklin or his agent in England?
Did Franklin not correspond about the letters with divers persons in Boston and elsewhere, and if so with whom?
Did he give instructions about publication, about concealing the letters from certain persons, and about showing them to certain others under promise of secrecy or similar restriction, and if so who were the persons and what were the restrictions?
Let him set forth all the correspondence in which the letters are mentioned, and say how many and which of them are now in his custody and how many copies, whether printed or not, and whether he intends to publish them in this kingdom.
Let him explain why he refuses to deliver the originals and copies to the petitioner, where they now are, and when, how, from whom, and for what valuable consideration he obtained them.
Let him be required to deliver them to the petitioner and account to him for receipts for all copies sold, and be restrained from publishing and otherwise using the originals or copies.
The petitioner begs for a writ of injunction to restrain Franklin accordingly, and a writ of subpoena to require him and his confederates, when discovered, to appear and make answer to all the premises and to abide by such further orders as to the court shall seem meet.>
5. Chancery Proceedings C 12/80/15; Mass. Arch., LXXXVII, 386–8. BF presumably forwarded the copy to Cushing because the suit concerned the province.
6. Above, XX, 513–16. The letters are a theme of that volume, and BF’s procurement of them, which was the background of Whately’s suit, is discussed in XIX, 401–9.
7. Below, pp. 431–5.
8. Whately to Andrew Oliver, March 18, 1774, Mass. Hist. Soc. We cannot identify either the “distant Menaces” or the “doubtfull Declarations,” but they must have had to do with publishing more of Hutchinson’s and Oliver’s correspondence with his brother. Whately had no way of knowing whether BF had such additional letters, and the attempt to find out was part of his bill.
9. But they may not have been working at top speed; see the headnote on the answer below, under April 19.
1. Below, p. 433.
2. BF’s much briefer summary is below, pp. 432–3.
3. The date is followed by the name Sewell, and at the end of the document appears the name Robinson; these were William Sewell and Mor[gan?] Robinson, Chancery clerks: Royal Kalendar … (London, 1775), p. 96. Henry Bathurst, Baron Apsley (1714–94), had been raised to the peerage and made lord chancellor in 1771 and held office until 1778, by which time he had succeeded his father as Earl Bathurst; during his tenure he acquired a widespread reputation for inefficiency. DNB.
4. Boswell called Madocks (c. 1723–94), who was one of the most prosperous barristers in London, “a sensible, but a wondrous dull man”; he was subsequently an M.P. and eventually a Privy Councilor. Namier and Brooke, House of Commons, III, 97; see also the Gent. Mag., LXIV (1794), 960.