William Whately’s Chancery Suit: II. Franklin’s Answer, 19 April 1774: résumé
William Whately’s Chancery Suit: II. Franklin’s Answer3
Summary of AD: Public Record Office4
In the latter part of January Franklin and his lawyers were too busy preparing for the Privy Council hearing on the petition from the Massachusetts House to give attention to the Chancery suit initiated by Whately on January 7. On the 31st, two days after the hearing, Thomas Life engaged for Franklin the two barristers who had so unsuccessfully represented him at the Cockpit, John Dunning and John Lee. They were soon joined by Richard Jackson and a Mr. Sayer, who was to argue the case in Chancery; the five lawyers eventually decided not to demur to the whole bill but only to certain parts, and to insist in the answer that the plaintiff had no right to learn who gave the letters to the defendant or received them from him. At a number of meetings in February and March Life worked out the answer with his client and the others. When it was finally completed it was almost as long and quite as verbose as the bill, and again we have condensed and paraphrased.5 While it was in preparation Sayer three times petitioned the court successfully for extensions.6 Whether these delays were necessary is not clear, but they could scarcely have been unwelcome to Franklin; for in February he hoped to leave the country within three months.7 In fact the proceedings dragged on, as explained in the headnote on the following document, until after he did leave in March, 1775.
<19th April 1774.8 The Answer of Benjamin Franklin to the Bill of Complaint of William Whately:
The defendant reserves the right of exception to the many errors and insufficiencies in the bill. In reply to as much of it as he is advised is material and necessary for him to answer, he says that:
He has been told and believes that Thomas Whately is dead, but does not know when he died. He does not know but believes it may be true that the complainant is his administrator, that Thomas Whately corresponded for some years before his death with Thomas Hutchinson and Andrew Oliver of Boston, and that the six letters from Hutchinson and the four from Oliver mentioned in the bill were part of this correspondence. He does not know of any other letters. He does not know whether the letters in question were in Thomas Whately’s custody at the time of his death, but has heard and believes that he had delivered them to some person or persons; to whom and for what purpose and under what if any restrictions the defendant cannot say.
The letters came into his possession, as agent of the Massachusetts House of Representatives, in or about November or December, 1772. He had not before known of their existence, and did not and does not know whether they were addressed to Thomas Whately, although he has lately heard that they were and has no information to the contrary.
He has not for seven years past, alone or with others, carried on the trade of a printer.9
Neither he nor any one acting for him caused publication of the letters or erased an address on them.
As agent he sent the letters, as he “humbly apprehended it was his duty to do,” to a member of the House with whom he had been directed to correspond, because in his judgment they bore on matters of great importance to the province and because they had been given to him for transmission.
He believes that they have been published and widely disseminated in Massachusetts and elsewhere, but this was done without his knowledge or consent. He does not know of any printed copies sent to his friends in London, and has received only one or two himself.
He has corresponded with the aforesaid member of the House, but is not obligated to divulge the details of the correspondence.
He neither wanted to nor could keep the letters secret for the purpose of preventing any one in Massachusetts from sending information about them to the complainant, who as far as he knew had no right, interest, or concern in them.
He has heard from the aforesaid member of the House that the letters were received, but he is not obligated to divulge what he has learned from correspondence with him or any one else about how they were treated in Boston or elsewhere, or to say whether that correspondence is now in his custody.
Neither the originals nor copies of Hutchinson’s and Oliver’s letters are in his possession (he has given to some person or persons whom he cannot remember the printed copies that he received) except the authenticated and notarized copies sent to him as agent to support the petition from the House, and copies of those copies made for briefing counsel, and “a Copy thereof or some part thereof lately Printed and Published.”1
He never did and does not intend to have copies printed in this kingdom or anywhere else. The complainant never requested him to deliver the originals or copies in his possession, to desist from publishing them, or to tell him where they were or how he acquired them or to whom he transmitted them, and never gave him, prior to his bill, any intimation of such questions.
He cannot deliver the letters or copies of them because he has none in his possession except as aforesaid.
He is not obligated to say how or from whom he obtained the letters or to whom he sent them.
They were given to him as agent, without his paying any consideration or reward for them. He cannot say how many copies have been sold or for what price; he made no profit whatsoever from their publication.
He denies the unlawful combination and confederacy alleged in the bill. It contains nothing else that requires an answer and that he has not answered.
He humbly prays to be dismissed with reasonable costs and charges.>
C: Sayer
B. Franklin
3. To the bill in equity summarized above, Jan. 7.
4. Chancery Proceedings C 12/80/15.
5. BF’s much briefer summary is below, pp. 433–4.
6. The legal manoeuvers on the petition are set forth in Thomas Life’s chatty accounts: Worthington C. Ford, ed., “Franklin’s Accounts against Massachusetts,” Mass. Hist. Soc. Proc., LVI (1922–23), 104–6. Developments in the Chancery case may be found in ibid., pp. 106–8, 114–15, and in Public Record Office, Chancery Decrees and Orders, C 33/442/478, 485, 490. For Dunning and Lee see the account of the Privy Council hearing above, Jan. 29. BF’s Chancery counsel was almost unquestionably Charles Sayer (d. 1779) of the Inner Temple, who had been called to the bar in 1733; he was a director of the South Sea Co. and for many years counsel to the East India Co. Richard A. Roberts, A Calendar of the Inner Temple Records … (5 vols., London, 1896–1936), IV, [283]; Public Advertiser, Dec. 7, 1779. For the subsequent history of the case see the following document.
7. To RB above, Feb. 17.
8. We omit a notation that the answer was sworn at the Public Office on that day before R. Pratt, and another following the date, “Zincke by Wainewright”; the latter’s name reappears at the end after BF’s. Robert Pratt was a Master in Chancery; Christopher Zincke was one of the six clerks and R. Wainwright his subordinate. Royal Kalendar … (London, 1775), p. 96.
9. Since the dissolution of his partnership with David Hall in 1766: above, XIII, 87–9.
1. Here the legalese is too involved to be summarized both faithfully and intelligibly. BF, if we follow the meaning through the verbiage, is testifying about the letters in two forms, handwritten and printed. Of the former he has only the copies sent him from Massachusetts (above, XX, 243) and those that he had made from them. Of the latter he did have but has given away the Boston edition (ibid., p. 539) and now has the more recent edition, i.e., Mauduit’s. (The latter is the main source for the Privy Council hearing above, Jan. 29.)