To James Bowdoin
ALS: Massachusetts Historical Society; draft: American Philosophical Society6
In this letter, as in others later in the month, Franklin touched on a subject of crucial importance in the developing Anglo-American quarrel, the validity of the crown’s instructions to colonial governors. The issue had underlain the wrangling the year before between Governor Hutchinson and the House of Representatives over matters in which he was bound by his instructions.7 Challenging them struck at Franklin’s idea that the centripetal force in the empire was allegiance to the crown, for the force would be vastly attenuated by eliminating the King’s prerogative to govern through instructions. Franklin was no more eager than most of his countrymen to push the issue to that extreme, but he could not avoid the issue itself. It was a visible sign of the gap between the concepts held in Whitehall and in Boston of what the constitution was.
The British concept, because it is less familiar than the American, needs some explanation. It was a concept that had often been evaded and even violated with impunity, but the theory remained untouched by such practical considerations. The role that instructions played in it can be understood only in relationship to the two documents that were regarded as equally fundamental in the governing process, the charter and the governor’s commission under the great seal. The charter, as long as it was in force, granted the colonists certain privileges, notably that of legislating for their own affairs. The crown alone could not revoke any part of the grant without the consent of the grantees or their successors; the only means of total revocation or alteration were either through the courts or by Parliament. The colonists in turn assumed certain obligations, notably that of adhering to limits on their self-government; for the powers granted them, being only those that the crown might confer, did not include the legislative independence that the General Court was beginning to claim. Its legislation might not contravene a Parliamentary statute or the principles of common law, or detract from the prerogative as exercised through the governor, or encroach upon the interests of another colony.8 The Court was subordinate.
The charter mentioned the governor’s veto power and how he was to be appointed; but in British eyes it did not limit the office in the way the colonists claimed. The crown retained the right to create and define and fill the governorship, and did so through the commission and instructions. Each commission gave validity to the standing instructions that accompanied it, and to such further instructions as circumstances might dictate; these were binding on the governor provided that they did not violate the charter, colonial and Parliamentary statutes, or the principles of the common law. The standing instructions, for example, might order the governor in advance to veto certain kinds of bill or to follow certain legislative procedures; later instructions might further define the governor’s sphere of action, as by ordering him to dissolve the Court under certain conditions. The charter, in short, reserved powers to the crown. Some remained there; some were deputed to the governor in his commission, and he then received specific instructions on how to exercise them so as to ensure the subordination of the legislature. The commission was never intended to contradict the charter, or instructions to contradict either one. All three were parts of what was conceived to be a unified body of law, through which executive authority operated.9
It was theoretically possible, however, for contradictions to arise. Improperly drafted instructions might run counter to provisions of the charter or the commission or the accepted corpus of law. If the governor violated any such provision without instructions, his act would presumably be void and he could be impeached. If he acted on improper instructions, he would be safe but his act would be unconstitutional. Here the right of petition became paramount. Whether or not a petition was effective, it was the one sure means of bringing to the sovereign’s attention the constitutional grievances of individual subjects or an entire colony.1 On this point, for once, the British and American views coincided: the right to ask for redress was crucial in the operation of the law.
But in every other respect Franklin’s and the Bostonians’ concept of the constitution was different from Whitehall’s. They believed that the governor should obey only those instructions that conformed to the charter and to colonial law as both were interpreted in Massachusetts; otherwise he could and should ignore them. This belief rested on another, that the colonial legislature was autonomous within its own sphere, and might pass laws for the internal government of the province regardless of Parliamentary statutes or the royal prerogative. In this sense the General Court was in their view on the same footing as Parliament,2 and Governor Hutchinson’s proper role was to act as the House and Council told him to.3 This concept was the seed of responsible government, whereby each colony conducts its internal affairs without interference from the crown’s representative. The seed bore fruit in the nineteenth-century empire, but was far beyond the imagination of Lord North’s ministry. Franklin suggested, and perhaps even believed, that the British would retreat from their position if opposed with spirit. Did he really expect them to adopt the American position, or did he realize that it was incomprehensible to them?
London, Jany. 13. 1772
I should very readily have recommended your Son to the Care of my Friend Priestly, if he had continued to superintend the Academy at Warrington: But he has left that Charge some time since, and is now Pastor of a Congregation at Leeds in Yorkshire.
I am much obliged to you for introducing me to the Acquaintance of Mr. Erving, who appears a very intelligent sensible Man.4
The Governing of Colonies by Instructions has long been a favourite Point with Ministers here. About 30 Years since, in a Bill brought into Parliament, relating to America, they inserted a Clause to make the King’s Instructions Laws in the Colonies; which being oppos’d by the then Agents, was thrown out.5 And I well remember a Conversation with Lord Granville, soon after my Arrival here, in which he express’d himself on that Subject in the following Terms; “Your American Assemblies slight the King’s Instructions, pretending that they are not Laws. The Instructions sent over to your Governors are not like the Pocket Instructions given to Ambassadors, to be observed at their discretion as Circumstances may require. They are drawn up by grave Men, learned in the Laws and Constitutions of the Realm; they are brought into Council, thoroughly weigh’d, well-consider’d, and amended if necessary by the Wisdom of that Body; and when receiv’d by the Governors, are the Law of the Land; for the King is the Legislator of the Colonies.” I remember this the better, because it being new Doctrine to me, I put it down as soon as I return’d to my Lodging.6 To be sure, if a Governor thinks himself oblig’d to obey all Instructions, whether consistent or inconsistent with the Constitution, Laws, and Rights of the Country he governs,7 there is an End of the Constitution, and those Rights are abolish’d. But I wonder that any honest Gentleman can think there is Honour in being a Governor on such Terms. And I think the Practice cannot possibly continue, especially if oppos’d with Spirit by our Assemblies. At present no Attention is paid by the American Minister to any Agent here, whose Appointment is not ratified by the Governor’s Assent: And if this is persisted in, you can have none to serve you in publick Character that do not render themselves agreable to that Minister;8 those otherwise appointed can only promote your Interests by Conversation as private Gentlemen, or by Writing. Virginia had, as you observe, two Agents, one for the Council, the other for the Assembly; but I think the latter only was consider’d as Agent for the Province. He was appointed by an Act, which expired in the Time of Lord Botetourt, and was not revived.9 The other I apprehend continues; but I am not well acquainted with the Nature of his Appointment. I only understand that he does not concern himself much with the general Affairs of the Colony.
It gives me great Pleasure that my Book afforded any to my Friends. I esteem those Letters of yours among its brightest Ornaments, and have the Satisfaction to find that they add greatly to the Reputation of American Philosophy.
In Ireland among the Patriots I din’d often with Dr. Lucas. They are all Friends of America, in which I said every thing I could think of to confirm them. Lucas constantly gave Mr. Bowdoin and the Boston Patriots for his Toast.1
There is in the Governor’s Collection of Papers relative to the History of the Massachusetts Bay, published 1769, a Copy of an Answer made by Randolph to several Heads of Enquiry, which I take to be the same with those I sent you. I shall be very glad to have an Account of the present Number of Rateables when you can obtain it for me. With sincere and great Esteem, I am, Dear Sir, Your most obedient humble Servant
James Bowdoin, Esqr.
Endorsed: Dr. Benja. Franklin’s Letter London Jany. 13. 1772, political, and important.
6. Substantial differences between the draft and the finished version are indicated below.
7. See above, XVIII, 121, 153, 173–5, 178–80.
8. George Chalmers, ed., Opinions of Eminent Lawyers … (2 vols., London, 1814), I, 29–32, 119–20, 189, 195, 252–3, 263, 296; II, 31–2, 62; John F. Dillon, Commentaries on the Law of Municipal Corporations (5th ed.; 5 vols., Boston, 1911), I, 80–1; IV, 2727; Sir William Holdsworth, A History of English Law (6th ed.; 16 vols., London, 1938–66), IX, 49, 53–62, 65–7; XI, 55–6, 237–8, 248–9. Although we are solely responsible for this and other résumés of British constitutional theory in the present volume, we are grateful to Professor Ian R. Christie for reviewing them.
9. Thomas Pownall, The Administration of the Colonies (3rd ed., London, 1766), pp. 34, 39–40, 55–6; Chalmers, op. cit., I, 190–2, 232, 244, 248–50, 260, 268–9, 276, 304–7, 316, 506; II, 29–32; Holdsworth, op. cit., XI, 48–9, 56–7, 255–6; A. Berriedale Keith, Constitutional History of the First British Empire (Oxford, 1930), pp. 179–82, 251–2; Leonard W. Labaree, Royal Government in America: a Study of the British Colonial System before 1783 (New Haven and London, 1930), pp. 8–11, 31–2, 99, 222, 226, 228, 442.
1. Sir William Blackstone, Commentaries on the Laws of England (11th ed.; 4 vols., London, 1791), I, 143; Chalmers, op. cit., I, 191, 260, 304; Holdsworth, op. cit., VI, 402; XI, 48, 100–1, 254–8. See also the headnote to BF’s attack on Hillsborough below, under the beginning of August.
2. Pownall, op. cit., pp. 30–2, 40–7; Holdsworth, op. cit., XI, 57–8, 248, 250–1; Labaree, op. cit., pp. 30–3.
3. See the headnote to Cushing to BF below, July 15.
4. In the preceding paragraph and this one, and in his subsequent references to Exper. and Obser. and, in the final paragraph, to the enclosures he had sent, BF is replying to Bowdoin’s letters above, XVIII, 5, 23, 241–3. James Bowdoin, the son of the family, was studying in England; George Erving was his maternal uncle.
5. The episode occurred in 1744. See Labaree, op. cit., pp. 33–5, 439–40; Leo F. Stock, ed., Proceedings and Debates of the British Parliaments Respecting North America (5 vols., Washington, 1924–41), V, 187. The clause was apparently not thrown out, but died along with the bill when Parliament reconvened after the summer. By that time Granville (for whom see the next note) was no longer in the ministry, and his disappearance may have accounted for the dropping of his doctrine. It reappeared in 1748–49, and again was not adopted. Ibid., pp. 313–20, 361–2, 365, 367; above, V, 28, 38. Inherent in the clause as worded was a major constitutional change: all instructions would have become binding, by the removal of the limitations upon them discussed in the headnote.
6. For John Carteret, first Earl Granville, see above, VII, 249 n and the DNB. As Lord President of the Council, 1751–63, he spoke with authority about the elaborate and painstaking process of framing instructions, for a description of which see Labaree, op. cit., pp. 52–71. The Earl’s statement is less explicit here, and in the closely similar wording in the Autobiog. (pp. 261–2), than in BF’s third and most nearly contemporary version of it, which makes the king in council the legislator: when instructions “come there, they are the Law of the Land.” Above, VIII, 293. An instruction certainly had the force of law, but only for the recipient; and in theory, as explained in the headnote, it might not be legally binding even on him. It was not a legislative act, and could not compel legislation in the colony. We can only conclude with Keith (op. cit., p. 180 n) that Granville, if BF was quoting him correctly and in context, held an aberrant view.
7. The draft here inserts “and can proceed to govern in that Train.”
8. This point had become almost a cliché; see above, XVIII, 9–16, 153.
9. See ibid., p. 242.
1. The draft omits “often” in the first sentence of the paragraph; the concluding sentence reads “Lucas gave Mr. Bowdoin for his Toast.” Dr. Charles Lucas, physician and reformer, was called the Wilkes of Ireland; he had died the previous November. DNB. He presumably knew of Bowdoin as one of the authors of the Short Narrative of the Boston Massacre, copies of which had been sent to the British Isles. Above, XVII, 160 n; Sibley’s Harvard Graduates, XI, 527–8.