by H. W. Brands
21
The Cockpit
1774–75
The wolves were after more than sheep. They wanted Franklin. And they got him. In the spring of 1773, while Thomas Cushing and Sam Adams were considering how to make most effective use of the Hutchinson letters, Parliament revised the last remnant of the Townshend duties. At one time Franklin had hoped for repeal of the duty on tea, but the abandonment of nonimportation removed what pressure Parliament felt on the subject, and Americans settled back into their routine of an afternoon cup of tea, sometimes smuggled from Holland but often brought from Britain, with the three pence duty legally and openly paid.
Yet Parliament, with the clumsiness that had become characteristic of its American policy, managed to revive the rebellious spirit. In May 1773 it passed a Tea Act that, while leaving the American duty on tea unchanged, rebated other duties paid by the East India Company and allowed that company to market its tea directly to the American colonies, rather than through middlemen. Little effort was made to cloak the fact that this constituted a favor to the well-connected but abysmally run East India Company, nor to disguise the great advantage it gave the company over the American merchants who hitherto had bought tea at auction in England. Those merchants, who had little quarrel with Parliament once the bulk of the Townshend duties had been lifted, now confronted the looming specter of monopoly crushing them beneath its greedy heel.
Patriots in Philadelphia and New York were quicker than those in Boston to respond to the new threat, partly because of Boston’s distraction with the Hutchinson letters. But once Boston mobilized, it soon seized the lead against what the Bostonians accounted this latest manifestation of a British conspiracy upon American liberty. Sam Adams and allies insisted that the agents, or consignees, of the East India Company abandon their positions; when the consignees hesitated, the Sons of Liberty attacked the warehouse and home of one of them.
The controversy came to a head with the arrival in late November 1773 of the Dartmouth, the first of the ships bearing the East India Company’s tea. A standoff ensued between the Sons and the consignees. Adams whipped up enthusiasm for the former by calling a series of mass meetings; several thousand persons from the city and suburbs attended, shouting defiance at the East India Company, at Parliament, and at Governor Hutchinson, who was attempting to have the tea landed and who happened to be the father of two of the consignees.
On the evening of December 16 the largest meeting yet brought perhaps eight thousand people to Boston’s Old South Church. At a signal from Adams a group of about fifty men thinly disguised as Indians stormed the wharf where the Dartmouth lay, moored next to its recently arrived sister ships, the Eleanor and the Beaver, which also carried tea. Quite evidently the band of raiders included some longshoremen, for they knew the business of unloading a ship. They brought the casks of tea from hold to deck, opened them, and dumped the leaves out upon the bay. It was a long night’s work, for by morning some 90,000 pounds of tea, worth £10,000, had been consigned to the waves. For weeks leaves washed ashore all about the area. Nothing else aboard the ships was damaged; a single padlock, broken by mistake, was replaced.
The Boston Tea Party could hardly have happened at a more awkward time for Franklin. While the news of this most recent outburst was crossing the Atlantic, Franklin became linked to Massachusetts in the minds of ministers and others in England as never before, and the linkage did him no credit.
Upon the printing in Boston of the Hutchinson letters, Franklin initially hoped to keep clear of the affair. “I am glad my name has not been heard on the occasion,” he told Thomas Cushing. “And as I do not see it could be of any use to the public, I now wish it may continue unknown.” Yet he added, realistically, “I hardly expect it.”
To his surprise his secret held for several months. As in all good scandals, secrecy inflamed public interest; the London papers verily quivered with intimations, accusations, rejoinders, and denials regarding who had lifted the papers. Matters grew serious in early December when William Whately, the brother of the now-deceased original recipient of the letters, Thomas Whately, essentially charged John Temple, a minor government official born in America and known to sympathize with the Americans, with having stolen the letters. Temple challenged Whately to a duel; in Hyde Park they slashed at each other ineptly with swords till Whately’s wounds caused him to retire.
Franklin might have kept quiet even after this, but Whately’s partisans circulated stories that John Temple had not fought fair—which caused Temple to declare the feud still open. A second duel impended.
Franklin thereupon spoke up. In late December he wrote a signed letter to the London Chronicle declaring Whately and Temple at once “totally ignorant and innocent” of the events over which they fought, and asserting forthrightly, “I alone am the person who obtained and transmitted to Boston the letters in question.” He was equally forthright in justifying his action. “They were not in the nature of private letters between friends”—as had been stated by those condemning the dissemination. “They were written by public officers to persons in public station, on public affairs, and intended to procure public measures; they were therefore handed to other public persons who might be influenced by them to produce those measures. Their tendency was to incense the Mother Country against her colonies, and by the steps recommended, to widen the breach, which they effected.” The principal caution expressed by the letters’ authors with regard to privacy was to keep their contents from the agents of the colonies, who might try to return the letters, or copies thereof, to America. “That apprehension was, it seems, well founded; for the first agent who laid his hands on them thought it his duty to transmit them to his constituents.”
Franklin’s statement was as much polemic as explanation. He was not alone responsible for lifting the letters; someone, whom he still and henceforth declined to name, handed the letters to him. Nor were the letters quite the public communications he indicated. To be sure, the individuals involved held public office, but these were not official reports or correspondence drafted under public compulsion. By Franklin’s argument all his letters to and from William should have been open to general perusal. (In fact some of those letters apparently were being opened, but Franklin hardly approved the practice.)
If any in England expected repentance, they certainly did not get it. Franklin’s assertiveness condemned him the more in the eyes of those who considered Boston a nest of sedition and judged all who spoke for Boston abettors of rebellion. Until now Franklin—the famous Franklin, scientist and philosopher feted throughout the civilized world—had been above effective reproach. His admission of responsibility for transmitting the purloined letters afforded his foes the opening they had long sought.
The initial skirmish took place on January 11, 1774. The Privy Council summoned Franklin to a hearing on the petition of the Massachusetts House to remove Hutchinson from office. No one, least of all Franklin, expected that the council was seriously considering dismissing Hutchinson; the question involved the manner of the council’s rejecting the petition—and its treatment of the agent delivering the petition. Franklin had reason to suspect trouble, if not a trap, for not until the late afternoon prior to the hearing did he learn that the opposition would be bringing legal counsel. Nor was the opposition counsel just any London lawyer, but Alexander Wedderburn, the solicitor general and a man with a reputation for putting courtroom invective to the service of personal and political ambition. He held his current position not from any philosophical affinity with the North administration but because North determined that it was better to have Wedderburn on the side of the government spewing out, than on the side of the opposition spewing in.
Franklin had hoped to argue for Hutchinson’s dismissal on political grounds; the appearance of Wedderburn indicated that the government intended to mount a legal—and personal—counteroffensive. Moreover, the target of the counteroffensive would not be Massachusetts but Franklin. Wedderburn’s opening sta
tement in response to the petition—“address”—of the Massachusetts House set the tone: “The address mentions certain papers. I would wish to be informed what are those papers.”
Wedderburn, and everyone else at the hearing, knew what the papers were, but he wanted to hear the admission from Franklin’s mouth.
“They are the letters of Mr. Hutchinson and Mr. Oliver,” Franklin replied.
The Lord President of the Privy Council, Earl Gower, inquired if Franklin had brought the letters.
Franklin answered that he had not. He did not say that the originals were in America, where he had sent them; that too was common knowledge. “But here are attested copies.”
“Do you not mean to found a charge upon them?” the Lord President insisted. “If you do, you must produce the letters.”
Franklin now implicitly conceded the present location of the letters. “These copies are attested by several gentlemen at Boston, and a notary public.”
Wedderburn interposed himself, with a show of magnanimity. “My Lords, we shall not take advantage of any imperfection in the proof. We admit that the letters are Mr. Hutchinson’s and Mr. Oliver’s handwriting.” He appended a hook, however, saying that the government’s side was “reserving to ourselves the right of inquiring how they were obtained.”
That side clearly had Franklin outmanned at this hearing, having informed him too late for him to secure legal counsel of his own. He objected that lawyers were really unnecessary. The case for removing Hutchinson and Oliver rested on the undeniable fact that they had forfeited the confidence of the people of the province they were charged with governing. Did the Crown desire to retain such men in office? And was this not a matter their lordships were perfectly capable of deciding on their own, without the intrusion of attorneys?
The government rejoined that attorneys were indeed necessary. The agent for Hutchinson and Oliver, Israel Mauduit, said he lacked personal knowledge of Massachusetts politics. Moreover, he lacked Franklin’s gifts. “I well know Dr. Franklin’s great abilities, and wish to put the defense of my friends more upon a parity with the attack. He will not therefore wonder that I choose to appear before your Lordships with the assistance of counsel.”
The court—that is, the Privy Council—agreed to allow the lawyers. Franklin could employ them or dispense with them, as he chose.
Franklin strongly considered waiving the right to counsel. He said he had intended simply to lay the pertinent documents before their lordships; these spoke for themselves. But wishing to give the Massachusetts House every possible chance to make its case, he decided to summon legal reinforcements. “I shall desire to have counsel,” he said.
The Lord President asked how long he would require to engage counsel and prepare.
“Three weeks,” Franklin replied.
Had Franklin waived counsel, or had he asked for one week rather than three, what happened next might have gone differently. As it was, the interim between the first and second Privy Council hearings brought news of the Boston Tea Party. For years Franklin had been urging Thomas Cushing, and through Cushing the rest of Massachusetts, to refrain from violence and the destruction of property. Just possibly public opinion in London might come round to America’s view of liberty and English rights—if that view were pressed peacefully and through legitimate channels. If Americans resorted to violence, however, their enemies in England would be able to say they were rebels one and all. Put otherwise, Thomas Hutchinson would be seen not as a betrayer of liberty but as a defender of the order on which liberty must be based.
And Franklin would be perceived not as a defender of liberty but as a betrayer of confidences. The campaign to cast him so began before the second hearing. Anonymous correspondents to the London journals hurled insults at the American agent, implying that if he were not directly culpable in this latest assault on property and order, his mark was figuratively all over the floating tea. That his days as deputy postmaster were numbered was taken as foregone. He even heard rumors that the authorities were on their way to arrest him, seize his papers, and throw him into Newgate prison.
By the time he arrived at the Cockpit on January 29, the ostensible reason for the hearing had almost been forgotten. Meetings of the Privy Council often evoked indifferent attendance, even from the lords themselves; but on this day the council chairs were filled. The Lord President of the council, Earl Gower, presided; thirty-four other eminences sat on either side of him. These included Lord North, the prime minister; Lord Dartmouth, the American secretary; Lord Hillsborough, Franklin’s foe of long standing; the Archbishop of Canterbury; the Bishop of London; the Lord Chief Justice of Common Pleas; the Duke of Queensberry; the Earls of Sandwich, Suffolk, and Rochford; Viscount Townshend (brother of the deceased author of the Townshend duties); Sir Jeffrey Amherst; and a score more. None present could recall a fuller meeting of the council. Nearly all were eager—the other few were anxious—to see what Solicitor General Wedderburn did with the estimable Dr. Franklin. The sole friendly visage among the group belonged to Lord Le Despencer.
On the rest of the main floor of the large hall, and in the gallery that ran around the room above the floor, scores of men and women crowded close to witness the highlight of the political season. Edmund Burke was there; also Jeremy Bentham and General Thomas Gage. Joseph Priestley managed to shadow Burke into the hall. Edward Bancroft, whom Franklin did not yet know, slipped in with that mysterious ease that characterized all his actions.
As the crowd waited for the hearing to begin, the air of expectancy intensified. It was like no other hearing most in attendance had ever witnessed; it seemed closer to a trial of a notorious murderer or one of the blood sports that so delighted the English masses. Franklin himself compared it to a “bull-baiting,” with him as the bull, chained to a post at the center of the arena.
The hearing began with a reading of the Massachusetts petition and supporting documents, including the Hutchinson-Oliver letters. Then John Dunning, a barrister Franklin had engaged on behalf of the Massachusetts House, reiterated Franklin’s previous point that the matter at hand was political, not legal, and that a judicial proceeding was hardly called for. Unfortunately for Franklin and Massachusetts, Dunning suffered from an illness of the lungs, which weakened his voice considerably, rendering it nearly inaudible and therefore unintelligible to the audience and most of the lords.
Before Dunning had a chance to finish his argument, Solicitor General Wedderburn leaped to his feet and seized the floor. He summarized the history of the Massachusetts colony from the Stamp Act riots to the present, paying special attention to the depredations of the Boston mob upon the current governor, Mr. Hutchinson. Listeners presumably expected him to connect this review to the issue at hand—or perhaps they expected otherwise, in light of the roasting said to be readied for Franklin.
If the latter, they were not disappointed, for the solicitor general suddenly launched into a tirade against Franklin that filled nearly an hour. Precisely what he said is difficult to reconstruct in all particulars; his language was too foul or libelous for even the scandalmongers of Grub Street. One person present called Wedderburn an “unmannered railer” who employed the “coarsest language,” unleashed “all the licenced scurrility of the Bar,” and decorated his diatribe with “the choicest flowers of Billingsgate.” Another auditor, friendly to Franklin, recorded, “I had the grievous mortification to hear Mr. Wedderburn wandering from the proper question before their Lordships, pour forth such a torrent of virulent abuse on Dr. Franklin as never before took place within the compass of my knowledge of judicial proceedings, his reproaches appearing to me incompatible with the principles of law, truth, justice, propriety, and humanity.” Edmund Burke characterized Wedderburn’s “furious Philippic” as transcending “all bounds and measures.”
Those words of Wedderburn that did see print were indeed furious. Franklin was called “the first mover and prime conductor” of the conspiracy by the Massachusetts House against the honor
and integrity of two fine servants of the king. “Having by the help of his own special confidants and party leaders first made the Assembly his agents in carrying on his own secret designs, he now appears before your Lordships to give the finishing stroke to the work of his own hands.”
The correspondence adduced by Franklin and his cabal to defame the governor and lieutenant governor in fact condemned Franklin himself, Wedderburn declared.
The letters could not have come to Dr. Franklin by fair means. The writers did not give them to him; nor yet did the deceased correspondent, who from our intimacy would otherwise have told me of it. Nothing then will acquit Dr. Franklin of the charge of obtaining them by fraudulent or corrupt means, for the most malignant of purposes, unless he stole them, from the person who stole them. This argument is irrefragable.
I hope, my Lords, you will mark and brand the man, for the honour of this country, or Europe, and of mankind. Private correspondence has hitherto been held sacred, in times of the greatest party rage, not only in politics but religion. He has forfeited all the respect of societies and of men. Into what companies will he hereafter go with an unembarrassed face, or the honest intrepidity of virtue? Men will watch him with a jealous eye; they will hide their papers from him, and lock up their escritoires. He will henceforth esteem it a libel to be called a man of letters: homo trium litterarum.
This last line brought roars of laughter from the lords and many of the gallery. All could appreciate the play on the English phrase; those who recalled their classics understood the reference to Plautus: “Tun, trium litterarum homo me vituperas? fur.” (“Do you find fault with me? You, a man of three letters—thief!”)
From wit Wedderburn returned to invective.
He not only took away the letters from one brother, but he kept himself concealed till he nearly occasioned the murder of the other. It is impossible to read his account [the one in which Franklin had owned up to his role in the publication of the letters], expressive of the coolest and most deliberate malice, without horror. Amidst these tragical events, of one person nearly murdered, of another answerable for the issue, of a worthy governor hurt in his dearest interests, the fate of America in suspense—here is a man who with the utmost insensibility of remorse, stands up and avows himself the author of all. I can compare it only to Zanga in Dr. Young’s Revenge: