From Benjamin Franklin to Thomas Leech and Assembly Committee of Correspondence, 13 May 1758
To Thomas Leech9 and Assembly Committee of Correspondence
LS with ALS postscript:1 Yale University Library
London, May 13, 1758
Gentlemen,
I receiv’d yours of February 6.2 with the Votes and other Papers relating to the Commitment of Moore and Smith. We immediately took Advice upon them, and engaged Counsel.3 It was however some Time before we heard any Thing from the other Side. At length we had Notice from the Attorney and Sollicitor General,4 that Smith’s Petition was referr’d to them, and a Day appointed to hear the Affair, which was the 10th. of April. We got the Hearing postpon’d to the 17th.5 when it came on at seven in the Evening. Paris was the Solicitor for the Petitioner, and he had engag’d two Counsel, vizt. Wilbraham and Forrester,6 who opened the Case, that this was a Clergyman of the Church of England, who had made the Quakers angry by promoting Measures of Defence, and therefore they bore him Malice, &c. Much of their Pleading was Invective against the Assembly as Quakers, the Rest to show that they had erected themselves into a Court of Justice, without any Authority so to do, and that they ap’d the House of Commons tho’ they had not the Powers of that House; that by presuming to order the Sheriff to disobey the King’s Writ, they were guilty of a high and most flagitious Attempt against the Royal Authority, &c. and ending with praying that the King might be advis’d to issue his Mandate for the Discharge of the Prisoner. They took up the whole Evening with their Harangues; so that Day Se’nnight7 was appointed for the Hearing of our Council in Reply. We had for Solicitor Joshua Sharpe, and for Council Parrot and De Grey,8 two able and eminent Men in their Profession, who I took Care should be well instructed; they performed very well, showed that the present Assembly were not Quakers; that the Libel against them was a Breach of Privilege; that all Representative Bodies must have incident to them the Powers exercis’d by the Assembly, that if they had deviated in small Matters from the Practice of the House of Commons it was in favour of the Petitioner, at least it had not been to his Prejudice; that tho’ their Clerk had inadvertently used some Expressions which more properly belong’d to Proceedings in Courts of Justice,* the Proceedings of the House had nevertheless been in themselves Parliamentary: That the Order forbidding the Sheriff to obey the Habeas Corpus had not prejudic’d the Petitioner, as the Writ never issu’d; and if it had, and the Prisoner brought before the Chief Justice in obedience to that Writ, he must have been remanded when it appeared he had been committed by the House for Breach of Privilege. That the Powers of the Assembly were granted by our Charters and confirm’d by our Laws; and that the Power in Question was, and always had been, exercis’d by all the Assemblies in America, of which Instances were produc’d, which I had furnish’d. And upon the whole hoping that His Majesty would not be advis’d to infringe the Liberties and Privileges of a whole People in their Representative Body, to gratify a single factious Person, who was a common Dealer in Libels and Disturber of the publick Peace, contrary to the Duties of his Profession. The Council for the Petitioner reply’d with much ill Manners and Abuse of the Assembly, but no Argument; only Paris whispering them that the Act of the 4th. of Queen Anne was never presented to the Crown,9 they insisted much on that, as if our Privileges could have no Existence without it, Penn not having Power to grant them. The Attorney and Sollicitor took the Matter under Consideration in order to form their Report, which as yet they have not made. Several Gentlemen of the Law who were present are of Opinion it must be in favour of the Assembly; but as Mr. Moore, a Member of Parliament1 interests himself strongly for the Petitioner, his Brother’s Case being involv’d with this, it is thought by others they will advise the Discharge of the Prisoner on Account of some alledg’d Irregularity of Procedure, but leave the Question of the Assembly’s Authority undetermin’d. However we shall watch their Report, obtain a Copy of it before ’tis presented, and if unfavourable to us, oppose it before the Committee of Council. By Snead, who sails in a few Days, I propose to send Copies of Smith’s Petition, and of the Remarks I furnish’d the Solicitor towards his Brief, and to the Council after the first Hearing towards their Reply.2 Both the Proprietors were present, abetting this Attempt on our Privileges.3
I have mention’d Mr. Moore’s Influence as a Member of Parliament, for that is a Circumstance that gives great Weight here in all Applications to the Crown. Almost every Thing is granted to Members of Parliament, the Ministry being extreamly unwilling to disoblige them lest they should join in some Opposition, and therefore I think it would be Prudence in our Assemblies hereafter to chuse their Agents among the Members of the House of Commons, or at least to secure a Patron among them by all possible Means.
Mr. Penn but very lately laid before the Board of Trade a Number of Acts of Assembly made in 1755, 1756, and 1757. Their Lordships sent for the Agents on Wednesday last,4 having some Objections to three of the Acts, vizt. To that in favour of Croghan and Trent, as it might be injurious to the Creditors who had not petition’d.5 To that for regulating the Provincial Forces, as it contain’d a Clause concerning enlisting of Servants which seem’d to militate against an Act of Parliament.6 To the Supplementary £100,000 Act,7 as it made the Bills a legal Tender, contrary to the Spirit of the Act of Parliament, made for the New England Colonies, &c. Paris attended with the Proprietor, in Behalf of Mr. Hockley; a poor Man as he said who was ruin’d by the first Act, since by being Croghan’s Partner he was oblig’d to pay his Debts.8 He endeavour’d to show that the Act was partially made to favour Friends of the Assembly, that it was hurried thro’ the House in an unprecedented Manner, lest the other Creditors should have Notice; that it did not appear any Proof had been made that the petitioning pretended Creditors had really any Thing due to them; and a good deal more of the same kind, tending to throw an Odium on the Assembly. In Answer, I alledg’d that the Assembly were quite indifferent and without any Partiality in favour of the Persons to be reliev’d; that if the Bill went quick thro’ the House, it was owing to the Shortness of Time, being near the End of a Session when the Petition was presented; that, however, the Bill had been considered by the Governor and his Council, one of whom was himself a Petitioner,9 and another a near Relation and Friend of one of the Petitioners, and Amendments propos’d by the Governor which were agreed to. That the Petitioners in general were Merchants of the greatest Note and Reputation in the City, who had in view chiefly that Croghan and Trent by their Acquaintance with the Indian Languages and Interest among them, might if at Liberty be of Service to the Province in Treaties, &c. and therefore were willing to postpone their private Claims for Ten Years; which was also a principal Inducement with the House. That none of the other Creditors had either oppos’d the Bill or complain’d of it since it passed; if they had petitioned against it, I was persuaded the House would either not have gone into it, or would have repeal’d it. That I was surpriz’d after Three Years to hear it said that Mr. Hockley was injur’d by it. That he was on the Spot when it pass’d, and I never heard that he oppos’d it; if he did, it must have been before the Governor and Council;1 for it could not pass without his Knowledge, as he was a great Officer in the Province, Receiver of the Proprietary Quit Rents, and Keeper of the Great Seal. That Mr. Hockley being a Partner and not a Creditor,2 must of Course be accountable for Partnership Debts, whether the Bill had pass’d or not, but if he was injur’d I wonder’d he had never before apply’d to their Lordships, and that the Proprietor had kept the Bill so long without presenting it. To which he answer’d, that he had indeed receiv’d the Bill soon after it pass’d, but perceiving it to be of an extraordinary Nature, he wrote over to enquire into the Circumstances relating to it,3 and kept it till he should receive the Information he wanted; and afterwards till he should have some other Bills to present with it. I then desired he would speak out if in Consequence of the Enquiry he made, he had or had not receiv’d Information of any Complaint of the other Creditors against the Bill. To this he made no Answer. Paris intimated that Mr. Hockley might not know of the Passing of the Bill, having come to the Offices I mention’d since that Time;4 and said the poor Man had been so cruelly oppress’d by the Creditors, who as soon as the Act pass’d, fell upon him, and had oblig’d him to pay above £1500 that he had not Spirit before to apply for a Repeal of the Act, &c. What the Board will do in it I know not, but believe they will advise the Repeal of it, for they seem’d to entertain strong Prejudices against it.5
In Answer to the Objection against the other Acts, I said that the Clause relating to Enlisting of Servants, regarded only our own Provincial Troops and not the King’s regular Forces; and that it had never been us’d to prevent Enlisting Servants in those Forces, and could be of no Consequence at present, because the Servants were now almost all inlisted, and that by Authority of the Act of Parliament without complying with the Directions of the Act in paying for them; at which their Lordships seem’d much surprized. As to the legal Tender of our Bills, I said they had always been issued under that Sanction; that no body in the Colony, or trading to it, complain’d of it; and that to issue them with a Declaration that they were not a legal Tender, would naturally produce a Depreciation. I believe they will not venture to advise the Repeal of that Act on that Account, and for the others I suppose we need not be much concern’d.6
The Board of Trade tho’ they have had the Treaty of Easton so long before them, in which Tedyuscung refers his Claims to the Determination of the Crown, have not yet call’d on Mr. Penn, or taken any Step to bring the Matter to a Hearing before the King and Council, nor has Mr. Penn made any Proposals to them of satisfying the Indians.7 I went Yesterday to Lord Halifax’s8 to press that Matter, and to Lord Granville’s. The latter only I found at Home;9 and he says it should by all means be expedited; it is not yet properly before the Council, but ought to be brought there and settled as soon as possible; so I am preparing a Petition for the Purpose to be presented next Week; having no longer any Hopes of a private Accommodation with the Proprietors, who still pretend they cannot answer our Complaints for want of the Attorney and Sollicitor’s Opinion, (as you will see by the inclos’d Copies of Letters)1 and openly abet every Attack upon and Abuse of the Assembly.2
Mr. Charles and Mr. Partridge assisted in all these Affairs with great Zeal and Diligence, and were very serviceable on many Accounts; as was also my Son.
I hope this Summer may establish my Health, and enable me to bear, if it be necessary another Winter here in your Service; for how much soever I desire to be at home with my Family and Friends, I would not by Precipitation or Impatience, prejudice your Affairs; but endeavour to reconcile myself to this uncomfortable Absence as long as my Services seem acceptable, and the Assembly shall think my Stay here of Use to my Country.
I am, Gentlemen, with great Esteem and Respect, Your obedient, and faithful humble Servant
B Franklin
To Thomas Leech, Esqr. Speaker of the Honble. House of Representatives, with the Committee of Correspondence.
PS. May 19. The above is a Copy of mine per Pacquet.3 The Attorney and Solicitor General have not yet made their Report, and are out of Town for the Holidays, as are all the Ministry even Lord Granville, who seldom leaves the City, so that nothing can be done till their Return. I sent the Copy of Smith’s Petition per Pacquet: Nothing new has since occur’d; but perhaps before this Ship sails I may have something farther to add.
B F
Endorsed: Benja. Franklin’s Letter May. 13 1758.
9. Thomas Leech (c. 1686–1762), clerk of the Assembly, 1723–27; member of the Assembly, 1730–50, 1756–62; an original trustee of the Academy; vestryman and warden of Christ Church. A short but conveniently timed illness led the Quaker Isaac Norris to resign as speaker and Leech was elected in his place, Jan. 2, 1758, in time to preside over the Assembly “trial” of his fellow Anglican William Smith. See above, VI, 456–7 n; VII, 360 n, 385. He occupied the chair for the rest of this Assembly, Norris being reelected in October 1758.
1. The body of the letter is in WF’s hand.
2. Not found; see above, pp. 28–51, for lengthy documents on the petitions of William Smith and William Moore, and below, pp. 88–9, for papers BF sent to Pa. about them. BF’s account here of the hearings on Smith’s petition should be read in conjunction with those documents.
3. See above, pp. 5, 29.
4. Charles Pratt and Charles Yorke; see above, p. 3 n.
5. A mistake, the first hearing took place on April 20.
6. Randle Wilbraham (c. 1695–1770), D.C.L., Oxon., 1760, admitted to Lincoln’s Inn, 1718, and M.P., 1740–68; and Alexander Forrester (c. 1711–1787), admitted to Lincoln’s Inn, 1742, and M.P., 1758–74. Joseph Foster, Alumni Oxoniensis, 1500–1714, IV (London, 1892), 1629; The Records of the Honorable Society of Lincoln’s Inn. Admissions, I (London, 1896), 424; Gerrit P. Judd, IV, Members of Parliament, 1734–1832 (New Haven, 1955), pp. 198, 376; Gent. Mag., LVII (1787), 642.
7. A week later, April 27.
8. George Perrot (1710–1780), admitted to the Inner Temple, 1742, appointed King’s counsel, 1759, and a baron of the Exchequer, 1763; DNB. William de Grey (1719–1781), admitted to the Middle Temple, 1742, highly successful as an advocate for and supporter of Lord North; appointed solicitor general, 1763; attorney general, 1766; knighted the same year; M.P., 1761–1780, and created first Baron Walsingham in 1780. DNB.
9. Neither of the laws of the fourth of Queen Anne cited as evidence of the Assembly’s powers and privileges (above, p. 15), was ever formally approved by the Privy Council. This failure is probably the foundation of Paris’ charge; however, the acts were considered by the Council, Oct. 24, 1709, but not acted upon within six months, and so, under the terms of the Pa. Charter, they continued in full force and could not be disallowed thereafter. Statutes at Large, Pa., II, 171, 212–21. See below, p. 400 n.
1. Daniel Moore, M.P. for Great Meadow (1754–61), was the brother of William Moore, Smith’s fellow petitioner. On the Moore petition, see below, p. 149 n.
2. BF apparently did not send the copies until June 10; see below, p. 88. The Betty Sally, Capt. Edward Snead, did not reach Philadelphia until early October, following a voyage of about two months. Pa. Gaz., Oct. 4, 1758. Since he had left London by June 10, he seems to have waited about two months for a westbound convoy.
3. On the same day BF made this report on the hearings, Thomas Penn wrote that in view of the sympathetic attention given Smith’s petition, he felt sure “Mr. Franklin will give [the Assembly] strong cautions … not to seize either Persons or Papers” in the future. Penn to Richard Peters, May 13, 1758, Penn Papers, Hist. Soc. Pa. Paris described the hearings and what he thought was BF’s reaction to them: “We have had two Hearings, before [the King’s attorney and solicitor general], at which we, on our part, shewd that, even the Commons of Great Britain, had no such power as the Pensilvania Assembly had assumed, that the Assembly of Pensilvania was not a parliament, nor had any thing near so much power as the House of Commons had, that the Assembly had acted in a most arbitrary and unjust manner, (even if they had had a sufficient Jurisdiction) And that the King, by his Sovereignty, had full power to order Mr. Smith’s Release, And had decreed that, and in much stronger Instances, in Pensilvania itself, and in Sundry other provinces, in America. Mr. Franklin had instructed his Counsell, to speak his usual Language, and to put the whole upon this single point, that the Assembly of Pensilvania had as full powers as the House of Commons had; A matter which, I dare to say, they would not have insisted on, nor would it have been endured, for a Moment, had we been heard, before a Superior Jurisdiction. I am in great hopes to obtain the Attorney and Solicitor General’s Report, in our favour, after the Holidays. I have reason to believe they are both very clearly of Opinion, that Mr. Smith ought, instantly, to be released, (and whenever he is so, I hope he’l bring his Action against the Sheriff, for false imprisonment) but, these Gentlemen, who are but young in Office, are cautious, how they act, although I have layd before them precedents, of stronger advice given to the Crown, in Sundry Instances, by almost every Attorney and Solicitor General, from the time of the Revolution down to this present time, in Cases from the American Colonys.” He added that he was informed that Franklin was “very uneasy at the Assemblys taking this most extravagant step,” which “makes a good deal of Noise here.” Paris to William Allen, May 13, 1758, Penn Papers, Hist. Soc. Pa. See below, p. 87 n, for Paris’ account of delay on the petition by the law officers of the Crown.
4. The Board took up the acts, seventeen in all, on May 2, 1758, together with Sir Matthew Lamb’s reports on them, and, in view of some doubts regarding the acts, requested the Proprietors to attend the Board the next day, when, after “some discourse,” the Proprietors and the Assembly agents were summoned to appear on May 10. The Board’s journal for that date records simply that Thomas Penn and the agents appeared, that there was “some discourse” on several laws, and that a report to the Privy Council Committee was ordered, which was signed two days later. Board of Trade Journal, 1754–1758, pp. 400–5.
5. See above, VI, 295 n, for the Pa. act, passed Dec. 2, 1755, which, upon petition from fifteen of the “principal Creditors,” relieved George Croghan and William Trent from the threat of imprisonment for debts for a period of ten years.
6. See above, VI, 437, for the offending clause in the Pa. law enacted April 15, 1756; and VI, 400 n, for the act of Parliament.
7. Of March 23, 1757; see above, VII, 151–2 n, and IV, 495–8, for the paper currency dispute.
8. Richard Hockley (d. 1774), Thomas Penn’s protégé, had been in partnership in the Indian trade with Croghan and Trent, 1748–52, but the firm ended in insolvency. He had been a silent partner, however; and when Croghan and Trent mixed their disordered private dealings with those of the partnership, Hockley was caught unwittingly, because the law in favor of Croghan and Trent stated that their partners were not to be similarly favored. Nicholas B. Wainwright, “An Indian Trade Failure. The Story of the Hockley, Trent and Croghan Company, 1748–1752,” PMHB, LXXII (1948), 343–75.
9. Benjamin Shoemaker. Councilor Joseph Turner was an uncle of another petitioner, Buckridge Sims.
1. The Council minutes record that Governor Morris did show the bill to Hockley, who claimed to have had no earlier notice of it and then proposed an unspecified amendment to which both Morris and the Assembly agreed. Pa. Col. Recs., VI, 744. Hockley wrote Thomas Penn substantially the same story, but added that Benjamin Chew had suggested the amendment to protect Hockley, and that before “the last Form [of the bill’s enactment] … Mr. Lawrence had enough influence” to get it changed again, apparently not to Hockley’s liking. Thomas Lawrence 2d and Edward Shippen sought to collect £702 from Hockley on a debt perhaps due from his partnership with Croghan and Trent. Hockley to Penn, Dec. 18, 1755, Penn Papers, Hist. Soc. Pa.; Nicholas B. Wainwright, George Croghan: Wilderness Diplomat (Chapel Hill, 1959), p. 87.
2. The improper imposition by Croghan and Trent of their private affairs on the partnership made Hockley their creditor; he later pressed claims against them and eventually collected £2000 from Croghan. Ibid., p. 279.
3. No particular inquiry has been found, but Hockley besought Penn’s protection incessantly, and Penn would have liked nothing better than to embarrass the Assembly while helping his protégé.
4. Paris was mistaken; Hockley had been receiver general since 1753.
5. Upon receipt of reports from Board of Trade and its own committee, the Privy Council repealed the act on June 16, 1758. The committee declared “that to suffer the continuance of an Act so unjust and partial in its nature, passed so irregularly, and without observance of any of those Rules which justice requires in all Cases which effect private property would be a precedent of the most dangerous consequence in the Colonies. …” Acts Privy Coun., Col., IV, 340–2.
6. After some grumbling by the committee about Pennsylvania’s legal-tender acts, the Privy Council approved the other measures presented. Ibid., pp. 341–2, 808.
7. Although both Penn and Paris professed an eagerness to settle the charges of land fraud, Paris took refuge as usual in procedural niceties; he observed to William Allen, June 10, 1758, that he did not “see how the Forms of business admit” of any action by the Proprietors. Penn Papers, Hist. Soc. Pa. BF presented a petition on behalf of Teedyuscung (see above, VII, 16 n) to the King in Council, Feb. 2, 1759; see below, pp. 264–76.
8. George Montagu Dunk, 2d Earl of Halifax (1716–1771), was president of the Board of Trade, 1748–61, during part of which period he was able to strengthen substantially the authority and effectiveness of the Board in handling colonial affairs. He was lord lieutenant of Ireland, 1761–63, first lord of the Admiralty, 1762, and a principal secretary of state, 1762–65. He was an uncle of Lord North, in whose ministry he served briefly as lord privy seal, 1770, and secretary of state, 1771. DNB; Arthur H. Basye, The Lords Commissioners of Trade and Plantations, Commonly Known as the Board of Trade, 1748–1782 (New Haven, 1925). On Granville, lord president of the Privy Council, see above, VII, 249 n.
9. Penn tried hard to keep BF from seeing the important ministers (Penn to Peters, May 13, 1758, Penn Papers, Hist. Soc. Pa.) and for this or other reasons BF made little progress at this time in establishing personal contact with them. In 1775, while recounting his negotiations with Pitt (by then Lord Chatham), he recalled that “When I came to England in 1757, you may remember I made several Attempts to be introduc’d to Lord Chatham (at that time first Minister) on Account of my Pensilvania Business, but without Success. He was then too great a Man, or too much occupy’d in Affairs of greater Moment. I was therefore oblig’d to content my self with a kind of non-apparent and un-acknowledg’d Communication thro’ Mr. Potter and Mr. Wood his Secretaries, who seem’d to cultivate an Acquaintance with me by their Civilities, and drew from me what Information I could give relative to the American War, with my Sentiments occasionally on Measures that were proposed or advised by others. I afterwards considered Mr. Pitt as an Inaccessible: I admired him at a distance, and made no more Attempts for a nearer Acquaintance.” Account of Negotiations in London, March 22, 1775, Lib. of Cong.
1. Probably copies of an unlocated letter from BF, and a reply by the Penns, April 6, 1758; see above, pp. 3–4.
2. BF’s quarrel with the Proprietors had been exacerbated at a recent meeting of the German Society (see above, V, 203–6, and VI, 532–5) attended by BF, James Hamilton, Dr. Samuel Chandler, Thomas Penn, and perhaps others. Following discussion of how the Society’s charitable schools for the Germans might be kept out of politics, BF read a letter (not found) he had received from Michael Schlatter, the superintendent of the schools in Pennsylvania, complaining of the Rev. William Smith’s “haughtiness.” Penn concluded an account of the meeting by observing to Peters: “I was not pleased that [Schlatter] chose Franklin to make these Complaints to, and think he acted a very weak, and not an honest part in doing it, he must know how Franklin stands in the opinion of all the Trustees in Pennsilvania, as well as myself, and should certainly have applied to Mr. Hamilton or you—I find Smith and he different on one material point,—Smith would oblige some of the Germans to learn English, and Mr. Slater would have let them go on in their own way, in this the Society agreed with Mr. Smith, which Mr. Franklin was not so well pleased with.” To Richard Peters, May 13, 1758, Penn Papers, Hist. Soc. Pa.
3. The original of this letter, not found, went on the packet General Wall, which sailed from Falmouth on May 20 and reached New York on July 3. This copy probably went on the James and Mary, Capt. James Friend, aboard which BF sent several other letters and boxes. She reached the Downs on May 20 to wait for a westbound convoy, but did not arrive in New York until early October. N.-Y. Mercury, July 10 and Oct. 9, 1758; London Chron., May 22, 1758; “Account of Expences,” p. 15; PMHB, LV (1931), 108.