The First American: The Life and Times of Benjamin Franklin (62 page)

In this tactical maneuvering Franklin had a most unlikely ally. Tedyuscung was a chief of the Delawares, a man who had been a friend of the English, then an enemy (his raiders were responsible for at least some of the attacks Franklin had countered in Northampton County in 1755), then again a friend. Yet even in burying the hatchet, Tedyuscung complained of historic wrongs the English had done his people, beginning with the Walking Purchase of 1737. Franklin and his allies in the Assembly thereupon urged Tedyuscung to address his people’s complaints to King George, who might protect them against the evil proprietors.

Upon arrival in London, Franklin took up Tedyuscung’s petition, and, in an audaciously broad interpretation of representative government, made the Indians’ case the Assembly’s own. As had become his custom, Franklin contrasted the beneficent policy of William Penn with the “deceit and circumvention” of the great man’s heirs. Franklin did not go quite so far as to blame the present Penns for the current war, but he cited, without contradiction, the Indians’ assertion that land fraud had been a principal cause of what Franklin himself described as “the cruelest murders and most horrid devastation” suffered by the people of Pennsylvania. By now Franklin’s letter likening Thomas Penn to a “low jockey” had reached the proprietor’s eyes; Franklin could not resist sticking a finger in one of those eyes by declaring, in his petition presenting Tedyuscung’s
case, that the Walking Purchase exhibited “such arts of jockeyship” as to give the Indians the worst possible opinions of the English.

Franklin was not quite cynical in forwarding the Delawares’ grievances, but he was certainly opportunistic. Having witnessed the bloody effects of bad Indian policy, Franklin was all for redressing wrongs. Yet without question he cared less for an old land dispute than for the continuing struggle with the proprietors. (He also realized that while Tedyuscung might be useful as a character witness against the Penns, the chief’s own character could be impeached. Besides having made war against Britain, Tedyuscung shared the weakness for alcohol that afflicted so many of his people. He died when Iroquois enemies caught him comatose and burned his house down around him.)

The Tedyuscung
petition was a flanking maneuver; Franklin’s central assault on the proprietors involved several laws passed by the Assembly and accepted by Governor Denny but rejected by the proprietors. The rejection put the Penns in the awkward position of overruling their appointed deputy; they defended this awkwardness by alleging that the Assembly had bribed the governor to ignore his instructions. The substance of the allegation, if not the proprietors’ interpretation of it, was true enough. After years of frustration with governors financially bound to veto measures favored by a majority of Pennsylvanians, the Assembly awakened to the possibility of outbidding the proprietors. The Assembly voted to indemnify Denny against the Penns; in addition it awarded him £3,000 in appreciation of his courage. Predictably, the Penns judged this transaction unethical and unacceptable.

Whether it was unlawful was what they and Franklin spent most of 1760 arguing about. Franklin and his fellow agent, Robert Charles, hired a team of legal professionals to prepare and present their case; the Penns engaged their own lawyers. The Privy Council referred the dispute to the Board of Trade, which put the matter on the docket for late March or early April. But a scandalously exciting murder trial of a prominent member of the House of Lords (who was convicted and hanged) distracted the board and delayed the case. Then Thomas Penn lost a son to illness just before the boy’s fourth birthday; this occasioned further delay. (If Franklin, remembering the death of his own Franky at four, felt sympathy for his foe, he concealed it well.)

When the board finally convened the hearings, the Penns’ lawyer indignantly attacked the Assembly for its “almost rebellious declarations” against royal authority and its “other acts of avowed democracy.” He repeated the charge against the Assembly of bribing the governor, and he chastised that body for taking advantage of the proprietors’ good nature in allowing it to meet on a regular basis. He implied that he need not say—although he certainly did say—that the late measures levying taxes on the proprietors’ holdings were unwarranted and illegal.

Franklin’s legal strategist was Francis Eyre; his courtroom lawyers were William de Grey and Richard Jackson. De Grey denied that any bribery had taken place. The Assembly had indeed voted an allowance for the governor, but this hardly represented a quid pro quo; it was simply a reimbursement for the governor’s expenses. De Grey disputed the charge of incipient democracy; no less authorities than officers of the king’s army testified to the loyalty and meritorious conduct of the Assembly. The proprietors had no business appealing the statutes in question to the Crown, for their own agent—the governor—had signed them, making them, under the terms of the royal charter, the law of the colony.

The hearings lasted four days; the board’s deliberations on what it had heard, three weeks. In late June 1760 the board delivered an opinion that said, at length, that the proprietors were basically right and Franklin wrong. On the critical issue of whether the proprietors were bound to accept a measure simply because their governor had done so, the board declared that this was “not only against the essential nature of all deputed power” but would tend to “establish an uniform system of collusion between the governor and the Assembly.”

Disappointing as this verdict was to Franklin, it was merely advisory. The Privy Council, acting through its Committee for Plantation Affairs, would make the final determination.

Accordingly the arguments were repeated, in the Whitehall hearing room called the Cockpit, in late August. Perhaps Franklin’s attorneys had learned from their earlier setback; perhaps the council committee felt freer to take a broadly political, rather than narrowly legal, view of the dispute. Whatever the cause, the council ruled more or less in favor of Franklin and the Assembly on the most important single measure, the bill that levied a tax on the proprietors’ estates. Some of the most heated rhetoric of the proprietors’ attorneys alleged that the Assembly intended to shift the burden of taxation from its constituents to the proprietors; Franklin’s advocates denied this. While the charges and denials flew
across the Cockpit, Franklin received a summons. As he told the story years later:

Lord Mansfield, one of the Council, rose, and beckoning to me, took me into the clerks’ chamber, while the lawyers were pleading, and asked me if I was really of opinion that no injury would be done the proprietary estate in the execution of the act. I said, Certainly. Then says he, You can have little objection to enter into an engagement to assure that point. I answered, None at all. He then called in Paris [actually, Henry Wilmot, Fernando Paris having died the previous winter], and after some discourse his lordship’s proposition was accepted on both sides.

This compromise marked a signal victory for Franklin and the Assembly. The proprietors, after years of resisting, accepted the principle that their holdings might be taxed along with those of every other property holder in Pennsylvania. Whether they had actually
believed
their lawyers’ arguments about being victimized by runaway democrats in Pennsylvania, only they knew; in any case the assurances Franklin agreed to promised they would not be so victimized. (As it happened, getting the Assembly to accept Franklin’s assurances was another matter.)

On the larger question, however, Franklin lost. The very fact that the Privy Council consented to hear the case meant that it accepted the Penns’ argument that Assembly approval and governor’s signature did not a Pennsylvania law make. The proprietors had been forced to yield on the tax issue, but there was nothing to prevent their contesting any number of other measures in the future.

As Assembly agent
, Franklin also found himself investment manager for the people of Pennsylvania. The Assembly authorized him to receive Pennsylvania’s portion of £200,000 allotted by Parliament to reimburse the American colonies for expenses incurred during the war with France, and over Thomas Penn’s objections—principled and personal—the Board of Trade approved.

To this point in his life Franklin’s investments had consisted chiefly of printing partnerships and occasional real-estate purchases. The money involved had been quite modest—certainly nothing like the £30,000 he now commanded. For help in putting that sum to safe use, he turned to
John Rice, a stockbroker suggested by Franklin’s friends, and a man whose record revealed a career of care and circumspection. Rice recommended the purchase of a variety of stocks chosen for their stability and long-term promise. By the end of the summer of 1761 Franklin had bought shares worth nearly £27,000.

An unfortunate combination of events soon soured the investment. The Assembly decided it needed the money at once, and in late 1761 directed Franklin to sell the stocks and reclaim the cash. “A more unlucky time could not have been pitched upon to draw money out of the stocks here,” Franklin replied. The peace negotiation with France had broken down, Pitt had been forced from office, and the war had widened to include Spain. Wars are notorious for deranging stock markets; in this case the derangement hammered the issues Rice and Franklin had selected. “All imaginable care and pains was taken to sell our stocks to the best advantage,” Franklin said, “but it could only be done by degrees and with difficulty, there being sometimes no buyers to be found.” The bottom line was abysmal; in the space of months Franklin managed to lose almost £4,000 of the province’s £27,000 investment.

Things could have been worse. As events shortly proved, John Rice was not the sober stock picker he seemed. Not long after Franklin closed Pennsylvania’s accounts with the broker, Rice came up seriously short on some speculative issues. To cover his losses he forged documents granting him power of attorney and embezzled other people’s money. His crimes coming to light, he fled for France. Perhaps he hoped the hostilities between Britain and France would protect him from extradition; perhaps they would have had they persisted. But Rice’s crowning bad luck was the arrival of peace hard upon his landing in France. The French packed him back across the Channel, where the authorities jailed, tried, and hanged him.

The bad end
of John Rice reinforced Franklin’s desire to proceed with a project long in the planning—“a little work for the benefit of youth,” he explained to Lord Kames, “to be called
The Art of Virtue.”
Franklin feared that the title sounded slightly pretentious, so he took some pains to delineate his intent.

Many people lead bad lives that would gladly lead good ones, but know not
how
to make the change. They have frequently
resolved
and
endeavoured
it; but in vain, because their endeavours have not been properly conducted. To exhort people to be good, to be just, to be temperate, &c. without
shewing
them
how
they shall
become
so, seems like the ineffectual charity mentioned by the Apostle, which consisted in saying to the hungry, the cold, and the naked,
be ye fed, be ye warmed, be ye clothed,
without shewing them how they should get food, fire, or clothing.