William Whately’s Chancery Suit against Franklin: I. The Bill in Equity
Summary of DS in the Public Record Office; copy: State House, Boston
<7th January 1774. To the Right Honourable Lord Apsley, Lord High Chancellor of Great Britain: Your petitioner, William Whately of London, banker and administrator of the estate of the late Thomas Whately, deceased, shows unto your Lordship that: Thomas Whately, late of the parish of St. James, Westminster, carried on a correspondence with the Hon. Thomas Hutchinson and the Hon. Andrew Oliver of Boston in New England. Included in this Correspondence were six letters from Hutchinson dated between June 28, 1768, and October 10, 1769, and four letters from Oliver dated between May 7, 1767, and August 12, 1769. At the time of Whately’s death these letters were either in his possession or had recently been given by him to some other person, to be read and safely returned. Shortly before or after his death they came, by means unknown to your petitioner and without his or Thomas Whately’s consent, into the possession of Benjamin Franklin or some other person or persons working with him or at his direction. Franklin, who is or has lately been in the printer’s trade, has caused the letters to be published without the knowledge or consent of Thomas Whately, your petitioner, Hutchinson, or Oliver. Franklin or some one else caused the addresses to be defaced, and transmitted the letters to friends or agents in Boston or elsewhere for publication. Many copies were printed there, and many sent back to London to Franklin and his confederates. Franklin corresponded with divers persons in Boston and elsewhere about the letters, arranged for their publication, and directed that they be concealed from certain persons who might have given your petitioner information about them. Franklin or others have acknowledgments of the receipt and publication of the letters. He still has in his possession some of the original letters and copies of those printed, and threatens to publish them in this kingdom. Your petitioner has applied to him to deliver the originals and all copies in his custody, to desist from publication, and to account to him for the profits thereof; but Franklin, confederating with persons unknown but who should be discovered and made parties to the suit, refuses to deliver the originals and copies or to reveal where they are or how, from whom, or by whose assistance they came into his possession, or to whom he transmitted them, and pretends that he gave a valuable consideration for them to some person or persons he refuses to name, and that your petitioner has no right to or interest in them. This pretension is contrary to equity and good conscience and tends to your petitioner’s manifest injury. Therefore, because strict rules of common law offer no remedy to your petitioner, only by the assistance of a court of equity can he make discovery of the matters mentioned, compel redelivery of the letters and copies, and restrain further publication. To that end he begs that Franklin be made to answer in particular the following questions: If Thomas Whately is dead, when did he die? Did your petitioner or any one else have administration of his estate? Was there a correspondence between Thomas Whatly, Hutchinson, and Oliver, and if so for how many years? During those years did not Whately reside in England and Hutchinson and Oliver in Boston? How many letters did Whately receive from each, and in particular did he receive the ten letters in question? Were they in his or some one else’s custody when he died, or had he delivered them to some person or persons for perusal and return, and if so when and to whom? Did they come into Franklin’s possession, and if so when, where, and by the hands of what person or persons did he see and obtain them? Did he or such person or persons receive them with the knowledge or consent of Thomas Whately or your petitioner? Does not Franklin now, or did he not lately, carry on the trade of a printer? Did not he or some other person, and if so who, publish the letters without the consent of Thomas Whately, your petitioner, Hutchinson, or Oliver? Which of the letters was addressed to Thomas Whately, and when, by whom, and for what purpose was the address removed? Did Franklin transmit such letters to friends or agents in Boston or elsewhere in America for the purpose of publication, or for what other purpose, and what letters were sent and to whom? Were copies of the letters, not printed or disposed of in Boston, sent from there to Franklin or his agent in England? Did Franklin not correspond about the letters with divers persons in Boston and elsewhere, and if so with whom? Did he give instructions about publication, about concealing the letters from certain persons, and about showing them to certain others under promise of secrecy or similar restriction, and if so who were the persons and what were the restrictions? Let him set forth all the correspondence in which the letters are mentioned, and say how many and which of them are now in his custody and how many copies, whether printed or not, and whether he intends to publish them in this kingdom. Let him explain why he refuses to deliver the originals and copies to the petitioner, where they now are, and when, how, from whom, and for what valuable consideration he obtained them. Let him be required to deliver them to the petitioner and account to him for receipts for all copies sold, and be restrained from publishing and otherwise using the originals or copies. The petitioner begs for a writ of injunction to restrain Franklin accordingly, and a writ of subpoena to require him and his confederates, when discovered, to appear and make answer to all the premises and to abide by such further orders as to the court shall seem meet.>

John Madocks

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