David Hartley’s Bright Idea

After my talk at Longfellow House–Washington’s Headquarters National Historic Site earlier this month, there was a long and lively question-and-answer session. And one question I didn’t have a great answer for. So I went home and looked up more stuff.

The question was about a suggestion made to Benjamin Franklin that American governments should guarantee slaves the right to trial by jury. How did that idea arise, and how did Franklin respond?

I looked in the Franklin Papers at Founders Online, and sure enough, a British Member of Parliament proposed that step to Franklin in late 1775. That M.P. was David Hartley (1730-1813, shown here), already introduced on Boston 1775 as the most boring speaker in the House of Commons.

Hartley became acquainted with Franklin in London through their mutual interest in science. He was elected to Parliament for the first time in late 1774. When Franklin headed home to Philadelphia, Hartley suggested they correspond regularly to share ideas about how to reconcile the Crown and the colonies. Because nobody was in a better position to solve the imperial crisis than a rookie lawmaker on the far side of the political opposition.

On joining the Continental Congress, Franklin sent Hartley letters laying out the standard American position, which would later inform the Declaration of Independence. For instance, on 12 September he wrote:

Your Nation must stop short, and change its Measures, or she will lose the Colonies for ever. The Burning of Towns, and firing from Men of War on defenceless Cities and Villages fill’d with Women and Children: The exciting the Indians to fall on our innocent Back Settlers, and our Slaves to murder their Masters; are by no means Acts of a legitimate Government: they are of barbarous Tyranny and dissolve all Allegiance.

Hartley replied on 14 November with a detailed plan for compromise by the two sides. To be more exact, Hartley sent Franklin a letter signed “G.B.” which said it was merely passing on ideas from “Your friend Mr. Hartley.” The first step, he agreed, was for Parliament to suspend three of the Coercive Acts: the Massachusetts Government Act, the Boston Port Bill, and the Administration of Justice Act. The next step:

To pass an act to establish the right of trial by jury to all Slaves in America and to annull all Laws in any Province repugnant thereto, and to require the enrollment of the said act by the respective assemblies of each Province in North America. . . .

I have consulted several American Gentlemen, who have all expressed themselves as confident that America would not hesitate to comply to the act of Jury to slaves, if they could be assured by their compliance with such an act of parliament, that they could secure to themselves restoration to their condition in 1763. It would be a satisfaction to receive some respectable or authentic opinion from America upon that subject.

Why trial by jury? I suspect that was the most basic right in British Whig thought, rooted in Anglo-Saxon legal traditions, not dependent on a person’s property or gender, and available even to criminal defendants. Establishing that right for enslaved blacks would start them on the stairs to more rights.

One wonders who the “several American Gentlemen” Hartley consulted were, because the only initiative in 1775 less likely than convincing Parliament to relax its strictures on Massachusetts (where an actual war had broken out) was to convince American slaveholders to give their human property more rights.

Nevertheless, Hartley thought well enough of his plan to repeat it in another letter to Franklin on 23 November. And on 7 December, well before he could have heard back from America, he brought his ideas to the House of Commons, explaining at length:

The object of the act of Parliament to be proposed to America may be perhaps in the event the abolition, but at present can only be considered as the first step to correct a vice, which has spread through the continent of North-America, contrary to tbe laws of God and man, and to the fundamental principles of the British Constitution. That vice is slavery.

It would be infinitely absurd to send over to America an act to abolish slavery at one word, because, however repugnant the practice may be to the laws of morality or policy, yet to expel an evil which has spread so far, and which has been suffered far such a length of time, requires information of facts and circumstances, and the greatest discretion to root it out; and, moreover, the necessary length of settling such a point would defeat the end of its being proposed as an act of compromise to settle the present troubles; therefore, the act to be proposed to America as an auspicious beginning to lay the first stone of universal liberty to mankind, should be what no American could hesitate an instant to comply with, viz: That every slave in North-America should be entitled to his trial by jury in all criminal cases.

America cannot refuse to accept and to enroll such an act as this, and thereby to re-establish peace and harmony with the parent State. Let us all be reunited in this, as a foundation to extirpate slavery from the face of the earth. Let those who seek justice and liberty for themselves, give that justice and liberty to their fellow-creatures.

With respect to the idea of putting a final period to slavery in North-America, it should seem best, that when this country had led the way by the act for jury, that each Colony, knowing their own peculiar circumstances, should undertake the work in the most practicable way, and that they should endeavour to establish some system, by which slavery should be in a certain term of years abolished. Let the only contention henceforward between Great Britain and America be, which shall exceed the other in zeal for establishing the fundamental rights of liberty to all mankind.

Hartley then moved for a vote on his idea. The vote was overwhelmingly negative.

TOMORROW: And what did Franklin say about Hartley’s proposal?