To Thomas Cushing
Reprinted from Collections of the Massachusetts Historical Society, first series, III (1794), 109–16.5
London, February 15 [—19?], 1774.
I Wrote a line to you by the last packet, just to acquaint you there had been a hearing on our petition. I shall now give you the history of it as succinctly as I can.6
We had long imagined that the king would have considered that petition as he had done the preceding one7 in his cabinet, and have given an answer without a hearing, since it did not pray punishments or disabilities on the governours. But on Saturday, the 8th of January, in the afternoon, I received notice from the clerk of the council, that the lords of the committee for plantation affairs, would, on the Tuesday following at twelve, meet at the Cockpit, to take into consideration the petition referred to them by his majesty, and that my attendance was required.
I sent directly to Mr. A. Lee, requesting a meeting, that we might consult upon it. He was not at his chambers, but my note was left for him.
Sunday morning I went to Mr. Bollan, and communicated the affair to him. He had received a similar notice. We considered whether it was best to employ other counsel, since Mr. Lee, he said, could not be admitted as such, not being yet called to the bar: He thought it not advisable: He had sometimes done it in colony cases, and found lawyers of little service: Those who are eminent, and hope to rise in their profession, are unwilling to offend the court; and its disposition on this occasion was well known. But he would move to be heard in behalf of the council of the province, and thence take occasion to support the petition himself.8
I went and sent again to Mr. Lee’s chambers in the temple, but could not meet with him; and it was not till near the end of the week that I learnt he was at Bath.
On Monday, very late in the afternoon, I received another notice, that Mr. Mauduit, agent for the governour and lieutenant governour, had asked and obtained leave to be heard by counsel on the morrow in their behalf. This very short notice seemed intended to surprise us.
On Tuesday, we attended at the Cockpit, and the petition being read, I was called upon for what I had to offer in support of it, when, as had been concerted between us, I acquainted their lordships that Mr. Bollan, then present, in pursuance of their notice, would speak to it.
He came forward and began to speak; but objection was immediately made by some of the lords, that he being only agent for the council, which was not a party to this petition, he could not properly be heard on it: He however repeatedly endeavoured to obtain leave to speak, but without effect; they would scarce hear out a sentence, and finally set him aside.
I then said, that with the petition of the house of representatives I had received their resolutions which preceded it, and a copy of the letters on which those resolutions were founded, which I would lay before their lordships in support of the petition.
The resolutions were accordingly read; but when the letters were taken up, Mr. Wedderburne, the solicitor-general, brought there as counsel for the governours, began to object, and inquire how they were authenticated, as did also some of the lords. I said the authentications were annexed. They wanted to know the nature of them. I said that would appear, when they were read, and prayed they would hear them. Lord Chief Justice de Grey1 asked who the letters were directed to; and taking them in his hand, observed there was no address prefixed to any of them. I said, that though it did not appear to whom they were directed, it appeared who had written them; their names were subscribed; the originals had been shown to the gentlemen themselves, and they had not denied their hand writing;2 and the testifications annexed proved these to be true copies. With difficulty I obtained to have the authentications read; and the solicitor-general proceeding to make observations as counsel for the governours, I said to their lordships, that it was some surprise to me to find counsel employed against the petition; that I had no notice of that intention till late in the preceding day; that I had not purposed troubling their lordships with the hearing of counsel, because I did not conceive that any thing could possibly arise out of the petition, any point of law or of right that might require the discussion of lawyers; that I apprehended this matter before their lordships was rather a question of civil or political prudence, whether, on the state of the fact that the governours had lost all trust and confidence with the people, and become universally obnoxious, it would be for the interest of his majesty’s service to continue them in those stations in that province: That I conceived this to be a question of which their lordships were already perfect judges, and could receive no assistance in it from the arguments of counsel; but if counsel was to be heard on the other side, I must then request leave to bring counsel in behalf of the assembly, and that their lordships would be pleased to appoint a farther day for the hearing, to give time for preparing the counsel. Mr. Mauduit was then asked if he would wave the leave he had of being heard by counsel, that their lordships might proceed immediately to consider the petition. He said he was requested by the governours to defend them, and they had promised to defray the expense, by which he understood that they expected he should employ counsel; and then making me some compliments as if of superior abilities, said he should not against me hazard the defence of his friends by taking it upon himself. I said I had intended merely to lay the papers before their lordships, without making a single comment on them: But this did not satisfy; he chose to be heard by counsel. So finally I had leave to be heard by counsel also in behalf of the petition. The solicitor-general, finding his cavils against the admission of the letters were not supportable, at last said, that to save their lordships time he would admit the copies to be true transcripts of the originals, but he should reserve to himself a right, when the matter came on again, of asking certain questions, such as, how the assembly came into the possession of them, through what hands, and by what means they were procured? “Certainly (replied Lord Chief Justice de Grey, somewhat austerely) and to whom they were directed; for the perfect understanding of the passages may depend on that and other such circumstances: We can receive no charge against a man founded on letters directed to nobody, and perhaps received by nobody: The laws of this country have no such practice.” Lord President,3 near whom I stood, as I was putting up my papers, asked me if I intended to answer such questions. In that, I said, I shall take counsel. The day appointed for the hearing was the 29th of January.
Several friends now came to me, and advised me to retain Mr. Dunning, formerly solicitor-general, and very able in his profession. I wished first to consult with Mr. Lee, supposing he might rather be for his friend, Mr. Sergeant Glynn.4 I found Mr. Lee was expected in town about the latter end of the week, and thought to wait his coming; in the mean time I was urged to take Mr. Dunning’s advice as to my own conduct, if such questions should be asked me. I did so, and he was clear that I was not and could not be obliged to answer them, if I did not choose it, which I informed him was the case, being under a promise not to divulge from whom I received the letters. He said he would attend however, if I desired it, and object in my behalf to their putting such questions.
A report now prevailed through the town, that I had been grossly abused by the solicitor-general, at the council board. But this was premature. He had only intended it, and mentioned that intention. I heard too, from all quarters, that the ministry and all the courtiers were highly enraged against me for transmitting those letters. I was called an incendiary, and the papers were filled with invectives against me. Hints were given me, that there were some thoughts of apprehending me, seizing my papers, and sending me to Newgate. I was well informed that a resolution was taken to deprive me of my place; it was only thought best to defer it till after the hearing: I suppose, because I was there to be so blackened, that nobody should think it injustice. Many knew too how the petition was to be treated; and I was told, even before the first hearing, that it was to be rejected with some epithets, the assembly to be censured, and some honour done the governours. How this could be known, one cannot say: It might be only conjecture. The transactions relating to the tea had increased and strengthened the torrent of clamour against us. Not one had the least expectation of success to the petition; and though I had asked leave to use counsel, I was half inclined to wave it, and save you the expense; but Mr. Bollan was now strongly for it, as they had refused to hear him. And though, fortified by his opinion, as he had long experience in your affairs, I would at first have ventured to deviate from the instructions you sent me in that particular,5 supposing you to allow some discretionary liberty to your agents, yet now that he urged it as necessary, I employed a solicitor, and furnished him with what materials I could for framing a brief;6 and Mr. Lee coming to town, entered heartily into the business, and undertook to engage Sergeant Glynn, who would readily have served us, but being in a fit of the gout which made his attendance uncertain, the solicitor retained Mr. Dunning and Mr. John Lee, another able man of the profession.
While my mind was taken up with this business, I was harassed with a subpoena from the chancellor, to attend his court the next day, at the suit of Mr. W. Whateley, concerning the letters. This man was under personal obligations to me, such as would have made it base in him to commence such a suit of his own motion against me, without any previous notice, claim, or demand; but if he was capable of doing it at the instance of the ministry (whose banker he is for some pension money) he must be still baser.7
The briefs being prepared and perused by our counsel, we had a consultation at Mr. Dunning’s chambers in Lincoln’s Inn. I introduced Mr. A. Lee as my friend and successor in the agency. The brief, as you will see by a copy I send you, pointed out the passages of the letters, which were applicable in support of the particular charges contained in the resolutions and petition. But the counsel observed, we wanted evidence to prove those passages false; the counsel on the other side would say they were true representations of the state of the country; and as to the political reflections of the writers, and their sentiments of government, their aims to extend and enforce the power of parliament, and diminish the privileges of their countrymen, though these might appear in the letters and need no other proof, yet they would never be considered here as offences, but as virtues and merits. The counsel therefore thought it would answer no good end to insist on those particulars; and that it was more advisable to state as facts the general discontent of the people, that the governours had lost all credit with them, and were become odious, &c. Facts of which the petition was itself full proof, because otherwise it could not have existed; and then show that it must in such a situation be necessary for his majesty’s service, as well as the peace of the province, to remove them. By this opinion, great part of the brief became unnecessary.
Notwithstanding the intimations I had received, I could not believe that the solicitor-general would be permitted to wander from the question before their lordships, into a new case, the accusation of another person for another matter, not cognizable before them, who could not expect to be there so accused, and therefore could not be prepared for his defence. And yet all this happened, and in all probability was preconcerted; for all the courtiers were invited as to an entertainment, and there never was such an appearance of privy counsellors on any occasion, not less than thirty-five, besides an immense crowd of other auditors.
The hearing began by reading my letter to Lord Dartmouth, enclosing the petition, then the petition itself, the resolves, and lastly the letters, the solicitor-general making no objections, nor asking any of the questions he had talked of at the preceding board. Our counsel then opened the matter, upon their general plan, and acquitted themselves very handsomely; only Mr. Dunning, having a disorder on his lungs that weakened his voice exceedingly, was not so perfectly heard as one could have wished.8 The solicitor-general then went into what he called a history of the province for the last ten years, and bestowed plenty of abuse upon it, mingled with encomium on the governours: But the favourite part of his discourse was levelled at your agent, who stood there the butt of his invective and ribaldry for near an hour, not a single lord adverting to the impropriety and indecency of treating a publick messenger in so ignominious a manner, who was present only as the person delivering your petition, with the consideration of which no part of his conduct had any concern. If he had done a wrong, in obtaining and transmitting the letters, that was not the tribunal where he was to be accused and tried: The cause was already before the chancellor.9 Not one of their lordships checked and recalled the orator to the business before them, but on the contrary (a very few excepted) they seemed to enjoy highly the entertainment, and frequently burst out in loud applauses. This part of his speech was thought so good, that they have since printed it in order to defame me every where, and particularly to destroy my reputation on your side the water, but the grosser parts of the abuse are omitted, appearing, I suppose in their own eyes, too foul to be seen on paper; so that the speech, compared to what it was, is now perfectly decent. I send you one of the copies.1 My friends advise me to write an answer, which I purpose immediately.2
The reply of Mr. Dunning concluded. Being very ill, and much incommoded by standing so long, his voice was so feeble, as to be scarce audible. What little I heard was very well said, but appeared to have little effect.
Their lordships’ report, which I send you, is dated the same day. It contains a severe censure, as you will see, on the petition and the petitioners; and, as I think, a very unfair conclusion from my silence, that the charge of surreptitiously obtaining the letters was a true one; though the solicitor, as appears in the printed speech, had acquainted them that that matter was before the chancellor; and my counsel had stated the impropriety of my answering there, to charges then trying in another court. In truth I came by them honourably, and my intention in sending them was virtuous, if an endeavour to lessen the breach between two states of the same empire be such, by showing that the injuries complained of by one of them did not proceed from the other, but from traitors among themselves.
It may be supposed that I am very angry on this occasion, and therefore I did purpose to add no reflections of mine on the treatment the assembly and their agent have received, lest they should be thought the effects of resentment and a desire of exasperating. But indeed what I feel on my own account is half lost in what I feel for the publick. When I see that all petitions and complaints of grievances are so odious to government, that even the mere pipe which conveys them becomes obnoxious, I am at a loss to know how peace and union is to be maintained or restored between the different parts of the empire. Grievances cannot be redressed unless they are known; and they cannot be known but through complaints and petitions: If these are deemed affronts, and the messengers punished as offenders, who will henceforth send petitions? and who will deliver them? It has been thought a dangerous thing in any state to stop up the vent of griefs. Wise governments have therefore generally received petitions with some indulgence, even when but slightly founded. Those who think themselves injured by their rulers, are sometimes, by a mild and prudent answer, convinced of their errour. But where complaining is a crime, hope becomes despair.
The day following I received a written notice from the secretary of the general post-office, that his majesty’s post-master general found it necessary to dismiss me from my office of deputy postmaster general in North America. The expression was well chosen, for in truth they were under a necessity of doing it; it was not their own inclination; they had no fault to find with my conduct in the office; they knew my merit in it, and that if it was now an office of value, it had become such chiefly through my care and good management; that it was worth nothing, when given to me; it would not then pay the salary allowed me, and unless it did, I was not to expect it; and that it now produces near £3000 a year clear to the treasury here: They had beside a personal regard for me.3 But as the post-offices in all the principal towns are growing daily more and more valuable by the increase of correspondence (the officers being paid commissions instead of salaries) the ministers seem to intend by directing me to be displaced on this occasion, to hold out to them all an example, that if they are not corrupted by their office to promote the measures of administration, though against the interest and rights of the colonies, they must not expect to be continued.4 This is the first act for extending the influence of government in this branch: But as orders have been some time since given to the American post-master general, who used to have the disposition of all places under them, not to fill vacancies of value, till notice of such vacancies had been sent hither, and instructions thereupon received from hence,5 it is plain that such influence is to be a part of the system, and probable that those vacancies will for the future be filled by officers from this country. How safe the correspondence of your Assembly-committees along the continent will be through the hands of such officers, may now be worth consideration, especially as the postoffice act of parliament, allows a post-master to open letters, if warranted so to do by the order of a secretary of state, and every provincial secretary may be deemed a secretary of state in his own province.6
It is not yet known what steps will be taken by government with regard to the colonies, or to our province in particular. But as inquiries are making of all who come from thence, concerning the late riot, and the meetings that preceded it, and who were speakers and movers at those meetings, &c. I suspect there is some intention of seizing persons, and perhaps of sending them hither.7 But of this I have no certainty. No motion has yet been made in the house of commons concerning our affairs; and that made in the house of lords was withdrawn for the present.8 It is not likely however that the session will pass over without some proceeding relating to us, though perhaps it is not yet settled what the measures shall be. With my best wishes for the prosperity of the province, I have the honour to be, Sir, your most obedient, and most humble servant,
Hon. Thomas Cushing, Esq. Speaker.
5. The original MS in the Mass. Arch., presumably an ALS, was reported missing in 1950: Antiquarian Bookman, V (1950), 979. A shorter but closely similar letter, couched in the third person, appears above under Feb. 7.
6. BF’s preceding letter, now lost, was of Feb. 2. It was more than a line; he said in it that after the scene at the Cockpit he could no longer act as agent of the House, because his usefulness was ended: to Cushing below, April 2. The succinct “history” that he now gives is his fullest report on the two hearings before the Privy Council, on Jan. 11 and 29, and adds a number of details to the accounts printed above under those dates; but most of the people and events that he mentions are covered there and require no further annotation.
7. Actually two, which were considered and rejected together: above, XX, 222–4.
8. As a lawyer William Bollan, the Council’s agent, was qualified to act for it, yet in the event was not allowed to speak. BF had been instructed to use Arthur Lee if he was qualified, about which the House had had doubts: ibid., p. 244 n.
1. For William de Grey (1719–81), Chief Justice of Common Pleas since 1771, see Namier and Brooke, House of Commons, II, 308–9.
2. When the originals were submitted to the Council (above XX, 234–5 n) Hutchinson and presumably Oliver saw them, and on June 23 the Governor informed the Council in writing that the letters “appear to be of my Signing.” The Representations of Governor Hutchinson and Others … (Boston, 1773), p. 73.
3. Earl Gower, the Lord President of the Council.
4. John Glynn (1722–79), sergeant at law and M.P. for Middlesex, had been a prominent counsel for the defense in the Wilkes case; see Namier and Brooke, House of Commons, II, 506–7.
5. To engage Lee and any other counsel he saw fit: above, XX, 244.
6. The solicitor was Thomas Life, whom BF had employed on other occasions (above, X, 369 n) and who continued to represent him in the law suit about the letters; see the headnote on BF’s answer in Chancery below, April 19. The materials that BF furnished for the brief were copies of the letters, his remarks on each, and general observations on the whole affair: Mass. Hist. Soc. Proc., LVI (1922–23), 104–5. His course of action is an interesting contrast to DeBerdt’s, in 1769–70, on the petition to remove Gov. Bernard: above, p. 38 n.
7. For BF’s services to Whately and views of the man’s ingratitude see above, pp. 13–14.
8. He was beginning a serious illness which, more than three months later, still impaired his speech: A. Francis Steuart, ed., The Last Journals of Horace Walpole (2 vols., London and New York, 1910), I, 338–9.
9. Wedderburn had made the same point: above, p. 59. The Chancery suit was to determine whether BF was answerable for damages; the question of whether his actions, which he admitted, were an offense was not at issue in the hearing.
1. This indicates that BF finished the letter four days or more after he started it. Part of the “decent” text appeared in the London Chron., Feb. 12–15, 15–17, but to the best of our knowledge the rest was not printed until the first edition of Mauduit’s pamphlet (I above, Jan. 29), which the Public Advertiser announced on Feb. 19. We assume that this was the text BF enclosed. He sent it and the letter by a ship that arrived on April 21; see BF to Cooper below, Feb. 25, 1774.
2. One of the friends who gave this advice was Sir John Pringle; see the note on the extract of a letter below, Feb. 19, 1774. BF’s answer, which he never finished, is the tract printed below at the end of the year.
3. BF here, and Anthony Todd in his letter above of Jan. 31, refer to the Postmaster General and then to them in the plural; this was apparently the usage of the day. One of the two was Lord Le Despencer, BF’s friend of long standing. The other was Henry Frederick Thynne (1735–1826), Lord Weymouth’s brother, who had been given the office in 1770: Namier and Brooke, House of Commons, III, 531. Thynne has not appeared before in these volumes, and we have no other evidence of his regard for BF.
4. This was scarcely new. A decade earlier government officials, according to Thomas Penn, had taken the position that BF must obey the wishes of Whitehall or be dismissed: above, XI, 318 n. 328 n.
5. BF undoubtedly received these instructions, but as far as we know referred to them only here and above, p. 83.
6. BF presumably meant that Parliament might extend the provision of the Postal Act (9 Anne, c. 10, section 40) to provincial secretaries. His scheme, if it was his, for creating an alternate, unofficial postal system is outlined in Temple to Bowdoin below, Feb. 20.
7. The administration was interrogating witnesses who had arrived from Boston, and examining the possibility of punishing Massachusetts by executive action without recourse to Parliament. Gen. Gage had assured the King that if coercive measures were adopted he would return to America to carry them out. The law officers had given their opinion that the Tea Party amounted to high treason, and that offenders might be tried locally or transported to England. (The idea of transportation was later dropped; see the note on BF to Cushing below, March 22, 1774.) Legal machinery had been set in motion for transferring the customs house from Boston, and the Cabinet was discussing an order to remove the seat of government as well. Sir John W. Fortescue, The Correspondence of King George III … (6 vols., London, 1927–28), III, 59; Gipson, British Empire, XII, 108–10; Jensen, Founding of a Nation, p. 454; Labaree, Tea Party, pp. 173–6; Donoughue, British Politics, pp. 53–7, 63–5.
8. For Buckinghamshire’s motion in the Lords see the note on BF to the Mass. House committee above, Feb. 2. BF’s two open letters to Buckinghamshire are below, March 4, April 2.