The First American: The Life and Times of Benjamin Franklin (92 page)

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 statement 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.