Benjamin Franklin Papers

Andrew Oliver to ——, 13 February 1769

Boston, 13th February, 1769.


I have your very obliging favor of the 4th of October. I find myself constrained as well by this letter as by my son and daughter Spooner’s letters since, to render you my most sincere thanks for the very polite notice you have taken of them; and I pray my most respectful compliments to the good lady your mother, whose friendly reception of them at Nonsuch has, I find engaged the warmest esteem and respect. He hath wrote us that he had a prospect of succeeding in the business he went upon; but the last letter we had was from her of the 23d of November, acquainting us that he had been very ill, but was getting better.5 She writes as a person overcome with a sense of the kindness they had met with, in a place where they were strangers, on this trying occasion.

You have heard of the arrival of the King’s troops, the quiet reception they met with among us was not at all surprizing to me. I am sorry there was any occasion for sending them. From the address of the gentlemen of the council to General Gage, it might be supposed there was none. I have seen a letter from our friend Ingersoll with this paraphrase upon it. “We hope that your Excellency observing with your own eyes now the troops are among us, our peaceable and quiet behavior, will be convinced that wicked G——r B——d told a fib in saying, We were not so before they came.” I have given you the sense of a stranger on a single paragraph of this address, because I suspected my own opinion of it, ’till I found it thus confirm’d. If you have the newspapers containing the address, your own good sense will lead you to make some other remarks upon it, as well as to trace the influence under which it seems to have been penned. The disturbers of our peace take great advantage of such aids from people in office and power. The lieutenant governor has communicated to me your letter containing an account of the debates in parliament on the first day of the session: We soon expect their decision on American affairs, some I doubt not with fear and trembling. Yet I have very lately had occasion to know, that be the determination of parliament what it will, it is the determination of some to agree to no terms that shall remove us from our old foundation. This confirms me in an opinion that I have taken up a long time since, that if there be no way to take off the original incendiaries, they will continue to instill their poison into the minds of the people through the vehicle of the BOSTON GAZETTE.

In your letter to the lieutenant governor you observe upon two defects in our constitution, the popular election of the Council, and the return of Juries by the Towns. The first of these arises from the Charter itself; the latter from our provincial Laws. The method of appointing our Grand Juries lies open to management. Whoever pleases, nominates them at our town-meeting; by this means one who was suppos’d to be a principal in the Riots of the 10th of June last, was upon that Jury whose business it was to inquire into them: But the provincial legislature hath made sufficient provision for the return of Petit Juries by their act of 23d Geo. 2d, which requires the several towns to take lists of all persons liable by law to serve, and forming them into two classes, put their names written on separate papers into two different boxes, one for the superior court and the other for the inferior: And when veniries are issued, the number therein required are to be drawn out in open town-meeting, no person to serve oftner than once in three years. The method of appointing Grand Juries appears indeed defective; but if the other is not it may be imputed to the times rather than to the defect of the laws, that neither the Grand Juries nor the Petit Juries have of late answered the expectations of government.

As to the appointment of the council, I am of opinion that neither the popular elections in this province, nor their appointment in what are called the royal governments by the King’s mandamus, are free from exceptions, especially if the council as a legislative body is intended to answer the idea of the house of lords in the British legislature. There they are suppos’d to be a free and independent body, and on their being such the strength and firmness of the constitution does very much depend: whereas the election or appointment of the councils in the manner before mentioned renders them altogether dependent on their constituents. The King is the fountain of honour, and as such the peers of the realm derive their honours from him; but then they hold them by a surer tenure than the provincial counsellors who are appointed by mandamus. On the other hand, our popular elections very often expose them to contempt; for nothing is more common than for the representatives, when they find the council a little untractable at the close of the year, to remind them that May is at hand.

It may be accounted by the colonies as dangerous to admit of any alterations in their charters, as it is by the governors in the church to make any in the establishment; yet to make the resemblance as near as may be to the British parliament, some alteration is necessary. It is not requisite that I know of, that a counsellor shou’d be a freeholder; his residence according to the charter is a sufficient qualification; for that provides only, that he be an inhabitant of or proprietor of lands within the district for which he is chosen: Whereas the peers of the realm sit in the house of lords, as I take it, in virtue of their baronies. If there should be a reform of any of the colony charters with a view to keep up the resemblance of the three estates in England, the legislative council shou’d consist of men of landed estates; but as our landed estates here are small at present, the yearly value of £100 sterling per annum might in some of them at least be a sufficient qualification. As our estates are partable after the decease of the proprietor, the honour could not be continued in families as in England: it might however be continued in the appointee quom diu bene se gesserit, and proof be required of some mal-practice before a suspicion or removal. Bankruptcy also might be another ground for removal. A small legislative council might answer the purposes of government; but it might tend to weaken that levelling principle, which is cherish’d by the present popular constitution, to have an honorary order establish’d, out of which the council shou’d be appointed. There is no way now to put a man of fortune above the common level, and exempt him from being chosen by the people into the lower offices, but his being appointed a justice of the peace; this is frequently done when there is no kind of expectation of his undertaking the trust, and has its inconveniences. For remedy hereof it might be expedient to have an order of Patricians or Esquires instituted, to be all men of fortune or good landed estates, and appointed by the governor with the advice of council, and enroll’d in the secretary’s office, who shou’d be exempted from the lower offices in government as the justices now are; and to have the legislative council (which in the first instance might be nominated by the Crown) from time to time fill’d up as vacancies happen out of this order of men, who, if the order consisted only of men of landed estates, might elect, as the Scottish peers do, only reserving to the King’s governor a negative on such choice. The King in this case wou’d be still acknowledged as the fountain of honour, as having in the first instance the appointment of the persons enroll’d, out of whom the council are to be chosen, and finally having a negative on the choice. Or, the King might have the immediate appointment by mandamus as at present in the royal governments. As the gentlemen of the council would rank above the body from which they are taken, they might bear a title one degree above that of esquire. Besides this legislative council, a privy council might be establish’d, to consist of some or all of those persons who constitute the legislative council, and of other persons members of the house of representatives or otherwise of note and distinction; which wou’d extend the honours of government, and afford opportunity of distinguishing men of character and reputation, the expectation of which wou’d make government more respectable.

I wou’d not trouble you with these reveries of mine, were I not assured of your readiness to forgive the communication, although you could apply it to no good purpose.

Mr. Spooner sent me a pamphlet under a blank cover, intituled, “the state of the nation”.6 I run over it by myself before I had heard any one mention it, and tho’t I cou’d evidently mark the sentiments of some of my friends. By what I have since heard and seen, it looks as if I was not mistaken. Your right honorable friend I trust will not be offended if I call him mine, I am sure you will not when I term you such, I have settled it for a long time in my own mind that without a representation in the supreme legislature, there cannot be that union between the head and the members as to produce a healthful constitution of the whole body. I have doubted whether this union could be perfected by the first experiment. The plan here exhibited seems to be formed in generous and moderate principles, and bids the fairest of any I have yet seen to be adopted. Such a great design may as in painting require frequent touching before it becomes a piece highly finish’d; and after all may require the miliorating hand of time to make it please universally. Thus the British constitution consider’d as without the colonies attain’d it’s glory. The book I had sent me is in such request, that I have not been able to keep it long enough by me, to consider it in all its parts. I wish to hear how it is receiv’d in the house of commons. I find by the publications both of governor Pownall and Mr. Bollan, that they each of them adopt the idea of an union and representation, and I think it must more and more prevail. The argument against it from local inconveniency, must as it appears to me be more than balanc’d by greater inconveniencies on the other side the question, the great difficulty will be in the terms of union. I add no more, as I fear I have already trespass’d much on your time and patience, but that I am, Sir, your obliged and most obedient humble Servant,

Andw. Oliver.

[Note numbering follows the Franklin Papers source.]

5In 1762 Margaret Oliver had married John Spooner, a young Boston merchant but already a widower. Sibley’s Harvard Graduates, VII, 385, 392; Thomas Spooner, Records of William Spooner … and His Descendants (Cincinnati, 1883), p. 346 n. The husband apparently did not recover from his illness, and died before the year was out.

6[William Knox,] The Present State of the Nation: Particularly with Respect to Its Trade, Finances, &c … . (London, 1768).

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