About the same time (mid-December, 1773), Franklin returned to London from Lord Le Despencer’s country house and realized that someone was almost certain to be killed if Temple and Whately met for a second time. So, on Christmas Day, 1773, he published in the Public Advertiser a fateful note.
Finding that two gentlemen have been unfortunately engaged in a duel about a transaction and its circumstances of which both of them are totally ignorant and innocent, I think it incumbent upon me to declare (for the prevention of further mischief, as far as such a declaration may contribute to prevent it) that. I alone am the person who obtained and transmitted to Boston the letters in question.
Franklin added a brief defense, claiming that the letters were “not of the nature of private letters between friends. They were written by public officers to persons in public stations, on public affairs, and intended to procure public measures....” He claimed that they had been passed from hand to hand among many public persons in England, and the only “caution” expressed with regard to their privacy was to keep them away from colonial agents, who might return them, or copies of them, to America.
Fourteen days later, Franklin was mildly astonished to discover that the petition of the Massachusetts Assembly was to receive a formal hearing before the Privy Council’s Committee for Plantation Affairs on the following Tuesday, January 11. This was unusual in itself. As for Franklin, the petition did not demand that the governors be either punished or censured, Franklin had assumed that the King would consider it “in his Cabinet,” in private consultation with the Privy Council. Hastily Franklin rushed to consult Arthur Lee, who had horned his way into a sort of subagent status, and William Bollan, who represented the Massachusetts Governors’ Council in London. Lee was out of town, and Bollan advised Franklin that there was no point in retaining a lawyer; it was almost impossible to find a good one willing to risk offending the Privy Council, the crème de la crème of the British establishment. On Monday, the day before the meeting, “very late in the afternoon,” Franklin was informed that Israel Mauduit, who acted as agent for Governor Hutchinson and Lieutenant Governor Oliver, had obtained the Council’s permission to be represented by a lawyer. “This very short notice seemed intended to surprise us,” Franklin grimly observed. On Tuesday morning at twelve, Franklin and Bollan walked to the Cockpit, a section of Whitehall Palace, which had once actually served as an arena for fighting cocks, in the days of Henry VIII. It was now the building in which the Privy Council regularly met and the Prime Minister conferred with his cabinet. It was used as an address when state papers were issued, much as to Downing Street is today. The Lords in Council met in a spacious chamber, built in drawing-room style with an open fireplace at one end. The long table at which the wigged and ribboned nobles sat ran from the fireplace to the opposite end of the room. Through the windows, at that end, one could look out on St. James Palace.
When Franklin entered the room, a single glance down this table made it clear that the atmosphere of the hearing would be frigid. Standing beside the chair of the Lord President of the Council, Lord Gower was Alexander Wedderburn, the King’s solicitor general. This was the counsel “hired” to defend Governors Hutchinson and Oliver. A lean, cold-eyed Scotsman with a savage tongue, Wedderburn had once been an outspoken foe of the North ministry. George III and Lord North had purchased him as casually as they might have acquired a piece of minor statuary for St. James Palace. A week after winning an ovation from London Whigs for a speech on behalf of their radical champion, John Wilkes, Wedderburn became solicitor general, and Lord North’s most vociferous supporter in Parliament. He had, Lord North remarked, an “invaluable gift of an accommodating conscience.” Junius, the wielder of history’s wickedest political pen, commented that there was “something about him that even treachery cannot trust.” A historian of the present century summed up Wedderburn as a combination of “cupidity and meanness which, if we were dealing with fiction, would be condemned as the intrusion of unconvincing melodrama.”
It was bad enough to be confronted by such a man on the basis of a purely political enmity. But Franklin undoubtedly knew there was a special circumstance which was bound to intensify Wedderburn’s gift for vicious invective: Thomas Whately had been one of the few genuine friends Wedderburn ever possessed. They had shared bachelors’ quarters in London for years and Wedderburn made no secret of the fact that he regarded Franklin’s use of the controversial letters as nothing less than a violation of his dead friend’s honor.
The tone of the hearing was set almost immediately, when Franklin asked permission for Mr. Dalian, who was a barrister, to speak on behalf of the petition. Permission was peremptorily refused by the Lord President and Franklin was told to do his own talking. Calmly he stepped forward and presented the petition, backing it up with the resolutions of the Assembly and the Hutchinson-Oliver letters. In his mildest manner, Franklin remarked, “It is some surprise to me, My Lords, to find counsel employed against the petition.”
“Had you not notice sent you?” asked Lord Chief Justice William De Grey.
“Not till late yesterday afternoon,” replied Franklin drily. In the same even calm voice, he attempted to place the petition in the proper perspective. He did not see how “anything could possibly arise out of the petition, any point of law or of right, that might require the discussion of lawyers.” On the contrary, “this matter before Your Lordships is rather a question of civil or political prudence, whether, on the state of the fact that the governors have lost all trust and confidence with the people and become universally obnoxious, it will be for the interest of His Majesty’s service to continue them in those stations in that province.” There was no point in listening to the arguments of lawyers. It was a question of national policy, which the Privy Council was perfectly equipped to decide.
Chief Justice De Grey replied as if he had not heard a word Franklin had said. “Where a charge is brought, the parties have a right to be heard by counsel, or not, as they choose.”
“Will Mr. Mauduit waive his right to be heard by counsel,” Franklin asked, “in order that Your Lordship may proceed immediately to consider the petition?”
Mauduit hastily declined to compete. “I know well Dr. Franklin’s abilities and wish to put the defense of my friends upon a parity with the attack,” he said. “He will not therefore wonder that I choose to appear before Your Lordships with the assistance of counsel.”
The Chief Justice asked Franklin if he wished to go on without counsel, anyway.
“I desire to have counsel,” Franklin replied, almost curtly.
“What time do you want?”
“Three weeks.”
The Chief Justice postponed “further proceedings” until Saturday, January 29.
Before Lord De Grey could close the meeting, Wedderburn added an ominous postscript. “I reserve the right,” he said, “when the matter comes on again, to ask certain questions, such as how the Assembly came into possession of [the letters], through what hands, and by what means they were procured.”
“Certainly,” said the Chief Justice, “and to whom they were directed; for the perfect understanding of the passages may depend on that and other such circumstances. We can receive no charge against a man founded on letters directed to nobody, and perhaps received by nobody. The laws of this country have no such practice.”
The meeting broke up. As Franklin was picking up his papers Lord President Gower sidled up to him and asked in mocking terms if he planned to answer Wedderburn’s questions.
Coolly Franklin replied, “In that I shall take counsel.”
London was soon a swirl with excited rumors about Franklin’s fate. Wedderburn continued to proclaim his intention to tear him apart. The King and the Privy Council were supposedly in hearty agreement with this plan. They were convinced that Franklin was an incendiary, the center of an intrigue against the government itself. “Hints,” as Franklin called them, reached Craven Street in the form of verbal messages and letters t
hat some members of the Council were recommending that he be seized as a common criminal and sent to Newgate. There was also very strong talk that they had already decided to fire him as Deputy Postmaster General. In the hearing, after Franklin was thoroughly “blackened,” the Massachusetts petition was to be rejected with “epithets.”
Pro-ministry writers smeared Franklin with mud in the newspapers. One of the more talented among them used rhymes in the General Evening-Post on January 11, 1774.
TO D.R F N
Thou base, ungrateful, cunning, upstart thing! False to thy country first, then to thy King;
To gain thy selfish and ambitious ends,
Betraying secret letters writ to friends:
May no more letters through thy hands be past,
But may thy last year’s office be thy last.
Among Franklin’s first thoughts was the fate of the Grand Ohio Company. There had been rumors that one of the reasons Solicitor General Wedderbum and his fellow Scot, Attorney General Edward Thurlow, delayed the charter for the province of Vandalia was Franklin’s name among the list of stockholders. They maintained that he was “unworthy the favors of the Crown,” because of his opposition to the ministry. Now they had a far more devastating accusation to back up this argument. A few hours after the meeting at the Privy Council, Franklin met with Thomas Walpole and the two men decided it would be best for him to write a public letter, resigning from the company. It was a cleverly worded document, which managed to work in a good bit of propaganda for the company, along with the resignation.
Sir: Being told that some persons in Administration have suggested that my conduct in affairs between this Kingdom and North America do not by any means entitle me to such a mark of favor from Government, as that of being a proprietor in the grant of land on the Ohio, to be made to yourself and Associates, I think it necessary to inform you, that I never considered the agreement with the Treasury for these kinds as a matter of favor, unless it was such from us to Government, by showing them that the lands that they used to give away might produce something to the publick Treasury.... I do therefore desire that you will strike my name out of the list of our Associates, and hereafter not look upon me as one of them, I wish you however all success in your hazardous undertaking....”
Walpole now had something in his hand to silence Thurlow and Wedderburn. Privately, however, he and Franklin concluded another agreement, whereby Franklin retained his full rights to his two of the company’s seventy-two shares of stock.
Then came an event that sent the blaze of ministerial wrath over the Hutchinson letters into an uncontrollable conflagration and doomed the Grand Ohio Company to extinction. On January 19, 1774, the British ship Hayley reached Dover with news that was undoubtedly rushed overland to Whitehall. On the night of December 16, 1773, forty or fifty Bostonians disguised as Indians had stormed aboard the British ships Dartmouth, Eleanor, and Beaver in Boston harbor and dumped some 300 chests of East India tea into the salt water. On January 22, the St. James’s Chronicle printed a complete description of the Tea Party, taken from Boston newspapers carried by the Hayley. Two days later, Lord Dartmouth asked the captain of the Hayley to come to his office and give him a complete report of the riot. The following day, the ship Polly docked at Gravesend with the doleful news that its cargo of tea destined for Philadelphia was still in the hold. That other center of Franklin influence had defiantly refused to allow either the tea or the East India Company agent to land. Finally, on Thursday, January 27, Governor Hutchinson’s official report of the assault on British property arrived and Lord North and the cabinet met in the Cockpit that evening to ponder the crisis.”
In such an atmosphere, any lingering hope Franklin might have entertained for the Massachusetts Assembly petition evaporated. Franklin was “half inclined” to waive the use of counsel and save the colony the money. But William Bollan was now in a near panic of apprehension and urged Franklin to hire the best available lawyer. Through Arthur Lee, Franklin attempted to hire Sergeant Glynn, famous for his successful defense of the agitator, John Wilkes. But Glynn was incapacitated by a fit of the gout, and Franklin instead hired John Dunning, a lawyer who was also a legend in his own way. By the sheer brilliance of his mind, he had triumphed over a uniquely ugly face and feeble body, as well as a toneless voice that was frequently choked by phlegm. To overcome Dunning’s personal deficiencies, Franklin hired another lawyer, John Lee, who was not so bright, but had a far more engaging voice and appearance.
In the midst of all these conferences and consultations, Franklin found himself dunned in a lawsuit brought by William Whately. This was particularly galling because only a month before the affair of the letters had erupted Franklin had gone to a great deal of trouble to assist Whately in securing title to some land in Pennsylvania, worth 5000 pounds, claimed by both him and the powerful Penns. Franklin had also voluntarily drawn the imperial lightning to himself to save Whately from an almost certainly fatal second duel with John Temple. Whately was, Franklin knew, a banker who handled a considerable amount of government pension money. It was easy enough to see why he was bringing the suit, which claimed that Franklin, in his trade as a printer, had made money out of stealing and publishing the Hutchinson-Oliver letters.
The absurd charge was obviously designed to do nothing but harass him.
As January 29 drew nearer, Franklin nevertheless remained somehow optimistic. In a way the uproar over the tea increased this optimism. The violence in Boston had finally brought the argument between America and Great Britain to a simple, brutal point of confrontation. The ministry, in the hearing on the twenty-ninth, had an unparalleled opportunity to demonstrate that they were, in spite of strong provocations, still determined to settle the quarrel peacefully. As for himself, Franklin anticipated less danger from Mr. Wedderburn. With the empire in crisis, he “could not believe that the solicitor general would be permitted to wander from the question before their lordships,” the petition from the Massachusetts Assembly. Where and how Franklin had gotten the letters really had nothing to do with the business at hand, business which events had suddenly made momentous.
But on January 29, when he arrived at the Cockpit for the hearing, Franklin instantly realized that his optimism was wishful thinking. Never before in the history of any living Londoner had so many lords attended a Privy Council meeting thirty-six, all in their most gorgeous finery, resplendent with Stars of the Garter and other royal Orders. Around the table swarmed a crowd of courtiers and politicians, most of them with greedily excited looks on their faces. Glancing across the room, Franklin saw dozens of faces he knew. Lord Gower, of course, the Council president, and Lord Rochford, both partners in the Ohio Company and Lord Sandwich, and Lord Le Despencer, who may have given him a small cautious smile of friendship. Near the chair of the Council president, Franklin saw his good friends Joseph Priestley and Edmund Burke. A newcomer from America, wealthy Ralph Izard of South Carolina, had also managed to squeeze into the room which was soon so crowded that when Lord North arrived late, no chair could be brought in for him to sit at the table and he stood, in his usual pudgy somnolence, beside Lord Gower’s chair. Franklin stepped into one of the recesses of the fireplace only a few feet away. Subtracting the worried looks on the faces of the handful of his friends, there was a holiday atmosphere in the room. Obviously, as Franklin later wrote, all the courtiers had been invited “as to an entertainment.”
Fortunately, Franklin had dressed well for the occasion. He was wearing one of his best suits, a dark-brown outfit made of a spotted material known as Manchester velvet. His wig was long and old-fashioned, as it was when he appeared before Parliament during the Stamp Act crisis. But no one expected a man of sixty-eight to wear the latest styles. Not that Franklin acted like an old man. An eyewitness described him as standing “conspicuously erect without the slightest movement of any part of his body. The muscles of his face had been previously composed, so as to afford a placid, tranquil expression.... The meeting opened
with Franklin’s lawyers repeating what he himself had stated three weeks earlier, the question before the Council was not a legal matter. It was an appeal to the wisdom and goodness of the King and his Councillors. Unfortunately, Dunning had a bad cold, which made his normally husky voice almost inaudible. But John Lee did his best to make up for this deficiency, with oratory in a more popular style.
Lee made his bow and retired. There was a moment of restless, expectant silence in the room. Then Alexander Wedderburn stepped forward, until he could place his hand on the Privy Council table, and began his speech.
This was no simple petition under consideration here, no request for a minor favor from the King, he intoned. Na, the question went to the very heart of Britain’s imperial policy. Could the British government now or in the future hope to employ men of proven loyalty to administer its colonies?
The answer, Wedderburn thundered, was NO if the Privy Council seriously entertained the petition of the Massachusetts Assembly, which Dr. Franklin was presenting. Governor Thomas Hutchinson and Lieutenant Governor Andrew Oliver had written nothing in their letters that any loyal servant of the Crown could not admit, with pride. Moreover, there was nothing in their official conduct since they had assumed the governorship on which grounds for dismissal could be argued. Wedderburn proceeded to eulogize Hutchinson as a noteworthy Crown servant. There was not “one single act of misconduct” to which the Massachusetts Assembly could point during his four years as governor. Yet they were asking the King to dismiss him and his lieutenant governor, “because they have lost the confidence of the people.”
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