The Preliminary Hearing before the Privy Council Committee for Plantation Affairs on the Petition from the Massachusetts House of Representatives for the Removal of Hutchinson and Oliver
I: printed in [Israel Mauduit,] The Letters of Governor Thomas Hutchinson and Lieut. Governor Oliver … with the Assembly’s Address, and the Proceedings of the Lords Committee of Council … ([1st issue of 1st ed., Yale University Library;] London, 1774), pp. *77–*80 of first pagination.6
II: copy, Privy Council register, Public Record Office.7
The record of the hearing survives in two parts. One is an extract, from a contemporary pamphlet, of the dialogue that took place between the principals; the quoted words may be inaccurate and are certainly incomplete,8 but give the flavor of the occasion. The other is the flavorless minutes of the proceedings in the Privy Council register.
Whitehall had received the petition from Massachusetts the previous autumn. In early December the machinery of government began to move, and by January the scene was set for action by the Privy Council sitting as the Committee for Plantation Affairs.9 Hutchinson had engaged as his agent Israel Mauduit, a friend of the late Thomas Whately and a London merchant and pamphleteer, who had long been connected with the affairs of Massachusetts. Early in January Mauduit conferred with several ministers, and as a result asked to be represented by counsel when the petition was heard. The date was set for the 11th, and on the 8th Franklin was summoned to attend. But not until the 10th, the day before the hearing, was he informed that Mauduit’s request for counsel had been granted.1 By then he had no time to engage and brief his own counsel. What William Bollan called “this sudden and precipitate proceeding” caught him and Franklin short. They could only work for delay, which they succeeded in obtaining: the matter was postponed to a second hearing on the 29th. Bollan was present on the 11th to watch over the interests of his employer, the Massachusetts Council; but because that body had not joined in the petition he had no chance to participate.2 He was confined to giving Franklin a lawyer’s informal advice on how to deal with opposing counsel, who turned out to be no less a figure than the Solicitor General, Alexander Wedderburn.3 The government was identifying itself from the start with Hutchinson’s defense.
I. The Report OF THE Hearing
At the Council Chamber, Jan. 11, 1774. Present, Lord President, the Secretaries of State, and many other Lords. Dr. Franklin and Mr. Bollan, Mr. Mauduit and Mr. Wedderburn.
Dr. Franklin’s Letter, and the Address, Mr. Pownal’s Letter, and Mr. Mauduit’s Petition, were read.4
Mr. Wedderburn. The Address mentions certain papers. I would wish to be informed what are those papers.
Dr. Franklin. They are the Letters of Mr. Hutchinson and Mr. Oliver.
Court. Have you brought them?
Dr. Franklin. No, but here are attested copies.5
Court. Do you not mean to found a charge upon them? if you do, you must produce the letters.
Dr. Franklin. These copies are attested by several Gentlemen at Boston, and a Notary Public.
Mr. Wedderburn. My Lords, we shall not take advantage of any imperfection in the proof. We admit that the letters are Mr. Hutchinson’s and Mr. Oliver’s hand writing: reserving to ourselves the right of inquiring how they were obtained.6
Dr. Franklin. I did not expect that Council would have been employed on this occasion.
Court. Had you not notice sent you of Mr. Mauduit’s having petitioned to be heard by Council on behalf of the Governor and Lieutenant Governor?
Dr. Franklin. I did receive such notice, but I thought that this had been a matter of politics and not of law,7 and have not brought any Council.
Court. Where a charge is brought, the parties have a right to be heard by Council or not, as they chuse.
Mr. Mauduit. My Lords, I am not a native of that country, as these Gentlemen are.8 I well know Dr. Franklin’s great abilities, and wish to put the defence of my friends more upon a parity with the attack; he will not therefore wonder that I chuse to appear before your Lordships with the assistance of Council. My friends, in their letters to me, have desired (if any proceedings, as they say, should be had upon this Address) that they may have a hearing in their own justification, that their innocence may be fully cleared, and their honour vindicated; and have made provision accordingly. I do not think myself at liberty therefore to give up the assistance of my Council, in defending them against this unjust accusation.9
Court. Dr. Franklin may have the assistance of Council, or go on without it, as he shall chuse.
Dr. Franklin. I desire to have Council.
Court. What time shall you want?
Dr. Franklin. Three weeks.10
Ordered, That the further proceedings be on Saturday 29th instant.
II. The Action of the Privy Council
At the Council Chamber Whitehall the 11th. Day of January 1774. By the Right Honourable the Lords of the Committee of Council for Plantation Affairs
The Lords of the Committee having appointed this Day to take into Consideration the Address of the House of Representatives of the Province of Massachusets Bay complaining of the Conduct of the Governor and Lieutenant Governor of that Province, and praying that they may be removed from their Posts, and Notice having been given to Dr. Franklin Agent for the House of Representatives, to attend, as likewise to Mr. Israel Mauduit (from whom a petition was Yesterday presented to their Lordships praying on behalf of the Governor and Lieutenant Governor to be heard by Counsel) of which Petition the Agent on the other side had Notice; They did attend accordingly (Mr. Mauduit with his Counsel) and the parties being called in, and the said Address of the House of Representatives being Read, Dr. Franklin acquainted their Lordships that he knew nothing of the Intention of hearing Counsel till Yesterday that he had no such Intention himself, but proposed to lay before their Lordships Copies of the Resolutions of the House of Representatives, and the Letters on which those Resolutions were founded,11 and Submit the Matter to their Lordships Judgment and Decision; but if Counsel was heard on behalf of the Governor and Lieutenant Governor, he should also pray to be heard by Counsel at a future Day. Mr. Mauduit Observed that he was not Master of all the Minuteness of the Constitution of the Province and was unwilling to rest the Defence of the Governor and Lieutenant Governor on himself without the Assistance of Counsel. Copy of the Resolutions of the Assembly Entitled Extract from the Journals of the House of Representatives Dated 16th June 1773 and Copies of the Letters (on which those Resolutions were founded) annexed to two Certificates tending to prove the Authenticity of the Copies of said Letters being proved by Dr. Franklin and read; Objections were made by the Counsel for the Governor and Lieutenant Governor to admitting the Copies of said Letters; but the Objection being afterwards waived, and the Counsel for the Governor and Lieutenant Governor declaring himself willing to admit that the Letters (of which the above Exhibit purported to contain Copies) had been wrote, reserving to himself at the same time a right to ask such Questions as he might find necessary, touching the manner of Obtaining such the Original Letters and the person to whom the same were addressed, Their Lordships at the then further Instance of the Agent for the House of Representatives to be heard by Counsel at a future day were pleased to appoint Saturday the 29th Instant (each party consenting thereto) to resume the Consideration of this Matter, and hear Counsel on both sides thereupon.
6. We have silently corrected two errors, as Mauduit did in later eds.: the date of the hearing and the date set for the next one.
7. We have omitted the list of the twelve Councilors present.
8. They omit a considerable part of the discussion as BF described it to Cushing below, Feb. 15.
9. For the steps taken see the note on BF to Cushing above, Jan. 5.
1. For the summons to BF see his letter to Cushing below, Feb. 15, 1774. For Mauduit see the DNB; his conferences with ministers are mentioned in WTF, Memoirs, I, appendix, p. lv, and his request for counsel, dated Jan. 10, is printed in his pamphlet, p. 71. The Council received and acted upon the request, and so informed BF, all on the same day; see the preceding document and the second part of this one. Such remarkable speed suggests preplanning.
2. He tried, first at this hearing and then at the final one on the 29th, to have the Council’s resolves (above, XX, 247 n) considered as part of Massachusetts’ case. He got nowhere. His report to his constituents implied that the ministry was deliberately suppressing their views: 6 Mass. Hist. Soc. Coll., IX (1897), 336–42.
3. Wedderburn (1733–1805), later attorney general, chief justice of common pleas, and lord chancellor, was already one of the most formidable lawyer-orators in Britain. He began practice in Edinburgh, where he was on familiar terms with leaders of the Scottish intelligentsia; in 1757 he joined the London bar, and promptly took elocution lessons to get rid of his accent. Four years later he entered Parliament as a protégé of Lord Bute, and with one brief intermission he remained in the House until he was raised to the peerage in 1780. He became noted for what the King called “that duplicity that often appears in his political deportment,” of which an example occurred early in North’s administration: Wedderburn made himself so troublesome in opposition that the government bought his allegiance with the solicitor generalship. Namier and Brooke, House of Commons, III, 618–20; see also the DNB.
4. For the petition (“the Address”) and BF’s accompanying letter see above, XX, 243–4 n, 372–3. John Pownall, Dartmouth’s undersecretary, transmitted them to the Privy Council with a covering letter printed in Mauduit’s pamphlet, p. 66. Mauduit’s “Petition” was his request for counsel.
5. The “Court” was Earl Gower, Lord President of the Council, and the attested copies were those that Cushing had sent: above, XX, 243.
6. Wedderburn was preparing the way for his later tactics on Jan. 29: to ignore the basic contention of the House, that the Governor and Lieutenant Governor had become obnoxious to the governed, and instead to attack the petitioners and particularly BF.
7. Mauduit here inserted a footnote to say that Wedderburn answered this point in his speech at the second hearing. See below, pp. 65–6.
8. Bollan had been born in England but had spent many years in America: above, XIII, 227 n.
9. Mauduit’s refusal to waive counsel, after he had successfully petitioned to be represented, could scarcely have surprised the court. If he had not refused, Wedderburn would have had no role to play at the later and more publicized hearing.
10. Bollan, who was standing near BF, advised him in answering this and the previous question. 6 Mass. Hist. Soc. Coll., IX, 337.
11. For the resolutions on which the petition was based, and the letters on which the resolutions were based, see above, XX, 238–9 n, 541–80.