Answers to Franklin’s “Hints”
Copy (?)3 and copy: Library of Congress
Barclay and Fothergill, after their long conference with Franklin on December 6, carried copies of his “Hints” to Lord Hyde and Lord Dartmouth respectively.4 For almost two months no word came from Whitehall, and the rejection of Chatham’s conciliatory plan by the House of Lords on February 1 persuaded Franklin that he would hear no more of negotiation.5 He was mistaken. On the 3rd the two Quakers met with Hyde and Dartmouth, in all likelihood to receive the Secretary’s answers,6 and the next day communicated them to Franklin. They gave no cause for optimism. The ministry would not make any concession, the answers twice emphasized, that implied a limit on Parliamentary power. Not only would the right of internal legislation in the colonies be retained, but also the amendment of the Massachusetts charter would have to remain as “a standing Example” of that power.
Here was the heart of the matter. Although the suggestion of altering colonial constitutions by statute, raised from time to time throughout the century, had with one minor exception not been implemented before the Massachusetts Government Act, the right to alter was in British eyes an integral part of Parliament’s supremacy.7 In Franklin’s eyes the right did not exist. He had long contended that every colonial charter was a compact between the crown and the people of the colony, and hence was alterable only with the consent of both parties; Parliament had no jurisdiction.8 To insist that it had, he told his friends at their meeting on February 4, was to call into question the colonists’ every privilege and leave them “secure in nothing.” If the government held to its position, no agreement was possible.9
When did Dartmouth and his advisers formulate that position in their replies? At some time between mid-December, when Franklin’s “Hints” reached them, and February 4, when he first saw their answers. We print them under the latter date, not merely because we have no better one but also because the situation by the 4th suggests that they were completed only a few days before. The government was still exploring the possibilities of conciliation, as witness North’s resolution of February 20. Dartmouth had no reason, once his office finished its leisurely response, to delay forwarding it to Franklin.
[Before February 4, 1775.]
1. The first Article was approv’d.10
2. The Second agreed to, so far as related to the Repeal of the Tea-Act. But Repayment of the Duties that had been collected, was refused.
3. The third not approved,1 as it imply’d a Deficiency of Power in the Parliament that made those Acts.
4. The fourth approved.2
5. The fifth agreed to,3 but with a Reserve that no Change prejudicial to Britain was to be expected.
6. The Sixth agreed to, so far as related to the Appropriation of the Duties: but the Appointment of the Officers and their Salaries to remain as at present.4
7. The seventh relating to Aids in Time of Peace agreed to.
8. The eighth relating to the Troops,5 was inadmissible.
9. The ninth would be agreed to, with this Difference, that no Proportion should be observ’d with regard to preceding Taxes,6 but each Colony should give at pleasure.
10. The tenth agreed to, as to the Restitution of Castle William; but the Restriction on the Crown in building Fortresses refused.
11. The eleventh refus’d absolutely, except as to the Boston Port Bill, which would be repeal’d; and the Quebec Act might be so far amended, as to reduce that Province to its ancient Limits. The other Massachuset Acts, being real Amendments of their Constitution, must for that reason be continu’d, as well as to be a standing Example of the Power of Parliament.7
12. The twelfth agreed to, that the Judges should be appointed during good Behaviour, on the Assemblies providing permanent Salaries, such as the Crown should approve of.
13. The thirteenth Agreed to, provided the Assemblies make Provision as in the preceding Article.8
15. The fifteenth, agreed to.9
16. The sixteenth agreed to, supposing the Duties paid to the Colony Treasuries.1
17. The seventeenth inadmissible.2
3. In BF’s hand and removed from his journal of negotiations under Feb. 4, 1775, the date of the meeting to discuss the answers; the other copy is in the copy of the journal. We do not know whether Barclay and Fothergill brought the answers in writing or reported on them orally; BF’s reference below, p. 584, to a “Paper” that was produced might be either to a written report or to the original “Hints.” If there was such a report, this document is presumably BF’s copy. If there was not, it is presumably his notes of what was said; and in that case no one can say how accurate the Quakers’ transmission was.
4. Above, p. 365.
5. Below, p. 583.
6. See the headnote below, p. 492.
7. For the background of this issue see Charles M. Andrews, The Colonial Period of American History (4 vols., New Haven and London, 1934–38), IV, 368–74, 378–407; A. Berriedale Keith, Constitutional History of the First British Empire (Oxford, 1930), pp. 179, 391–4; Charles H. McIlwain, The American Revolution: a Constitutional Interpretation (New York, 1923) pp. 170–85. An attempt made in 1769–70 to amend the Mass. charter is discussed above, XVII, 279 n.
8. Above, XVI, 301; XVII, 398.
9. Below, p. 584; see also p. 473 n. 7. BF made the same point to Lord Hyde a few weeks later; see p. 595.
10. The tea to be paid for.
1. The colonies to re-enact the Navigation Acts.
2. A naval officer to enforce the Navigation Acts in each colony.
3. Acts restraining colonial manufactures to be reconsidered.
4. BF proposed that duties under the Navigation Acts be paid to the colonies and collected by officers appointed by the governors rather than sent from England; the officers’ salaries were not mentioned.
5. That they enter a colony only with consent of its legislature.
6. BF proposed a ratio between the increase, in time of war, in British and colonial taxes.
7. Compare this answer with that to Article 12 of Barclay’s “Hints,” above, under Dec. 12.
8. BF’s proposal for the governors, unlike that for judges with tenure, was that they be “supported” by the assemblies; permanent support, subject to royal approval, was a major emendation.
BF next wrote, then deleted, “14. The fourteenth totally inadmissible.” So Barclay and Fothergill had told him, and had persuaded him to omit that article; see the “Hints” above, under Dec. 4.
9. That Parliament disown the application of the Treasons Act to the colonies.
1. This answer on its face is irrelevant to the article, which made two proposals: reducing Admiralty jurisdiction in the colonies, and embodying it in their legislation. The second proposal was open to the same objection as that to Article 3, and would have been illogical to concede; we therefore presume that the answer applied only to the first. A principal function of the Admiralty courts was to enforce the Navigation Acts. If duties under those acts were henceforth to be paid to the colonies, colonial courts would have an interest in enforcement. See below, pp. 555, 562.
2. That Parliament disown the right of legislating in the colonies’ internal affairs.