William Whately’s Chancery Suit: III. Exceptions to Franklin’s Answer2
Summary of incomplete copy: American Philosophical Society
The plaintiff’s exceptions are, to the best of our knowledge, the last extant pleadings in the case; and the copy breaks off in the middle. Madocks, Whately’s counsel, entered the exceptions later than the rules of the court permitted; on that ground Sayer, acting for Franklin, argued that they were inadmissible. The court overruled the argument on June 28, and three days later referred the case to Robert Pratt, a Master in Chancery, to determine whether the defendant’s answer was sufficient in the points to which the plaintiff took exception. On July 13 Pratt reported that nine of the exceptions were valid; others were not. The incomplete document summarized below may have been a copy either of the original exceptions or of the nine that the Master allowed.
Sayer took exception to the report, and argument was ordered before the Lord Chancellor but did not take place until after the defendant sailed for home.3 His departure, because it precluded any further answer from him if so ordered, exposed him to arrest for contempt of court should he return to England, as he hoped to do at the time he left. To postpone this threat, and stay process in Chancery, Thomas Life planned an appeal to the House of Lords;4 but his client realized soon after reaching America that return was out of the question, and ordered the appeal dropped.5 Meanwhile on May 13, 1775, eight days after Franklin’s landing in Philadelphia, Chancery ordered the Sheriff of Middlesex to arrest him. A month later the Chancellor reduced the plaintiff’s allowable exceptions from nine to three, and this apparently ended the manoeuverings in court. Warrants for arrest were issued intermittently until June 6, 1776, when the sergeant at arms reported to the Chancellor that “I have made diligent Search and Enquiry after the said Defendant But he doth so abscond and secrete himself that he is not to be found.” The following July the court ordered the sequestration of his personal estate and all income from his real estate.6 At this point, as far as we know, the proceedings died of inanition.
<After April 19 and before June 28, 1774.7 Chancery, William Whately plaintiff and Benjamin Franklin defendant. Exceptions taken by the plaintiff to the defendant’s answer to his bill:
That the defendant has not set forth, according to the best of his knowledge and belief,
First, for how many years before Thomas Whately’s death a correspondence was carried on between him and Thomas Hutchinson and Andrew Oliver.
Second, in whose custody, at the time of Thomas Whately’s death, were the six letters from Hutchinson and the four letters from Oliver mentioned in the bill.
Third, from whom the defendant received the ten letters, and whether they were given to him with the knowledge or consent of the plaintiff.
Fourth, whether the defendant or any other person, and if so who, had the letters published without the consent of the plaintiff or Hutchinson or Oliver or any or them.
Fifth, whether some or all of the letters were addressed to Thomas Whately and whether the address was removed, and if so when, by whom, and for what purpose.
Sixth, whether the defendant transmitted such letters to friends or agents in Boston or elsewhere in America, and if so to whom, for the purpose of publication or for what other purpose, and whether or not many copies were printed there.
Seventh, whether the defendant corresponded about the letters with divers persons in Boston or elsewhere, and if so with whom, and whether he gave instructions “concerning the produce of them” and that they should be concealed from certain persons, and if so from whom. Remainder missing.>
2. A summary of the answer, April 19, is the preceding document.
3. The reason, Whately believed, was a successful delaying action by BF’s counsel. The plaintiff consulted the law officers of the crown about legal process to keep BF from leaving, but they thought it inadvisable because it would be taken as a ministerial move. Hutchinson, Diary, I, 420–1.
4. Life’s accounts establish that his fees for the suit came to £131 7s. 8d. and that Arthur Lee, the moment BF departed, told the solicitor that the province would not be responsible for costs that BF had not already paid: Mass. Hist. Soc. Proc., LVI (1922–23), 108–13, 116–17.
6. Chancery records in the Public Record Office show only the bare bones of the proceedings. The entry of Pratt’s report on the exceptions gives none of his reasons and is uncharacteristically brief; that of Sayer’s response is even briefer, and says merely that the Master was mistaken. Reports and Certificates, C 38/655; Exceptions to Reports, C 40/3. The court’s actions may be found in Decrees and Orders, C 33/442/513, 533 (June 28, July 1, Aug. 12, 1774); C 33/4444/279, 380 (May 13, June 14, 1775); C 33/446/18, 187, 465, 504 (Dec. 8, 1775, [Feb. 6,] June 3, July 26, 1776). The quotation is in Reports and Certificates, C 38/667.
7. I.e. between the submission of BF’s answer and the court’s first action, just cited, upon the exceptions.