Franklin’s Remarks on Judge Foster’s Argument in Favor of the Right of Impressing Seamen, [before 17 September 1781]
Franklin’s Remarks on Judge Foster’s Argument in Favor of the Right of Impressing Seamen
Copy with autograph additions:9 Library of Congress
Sir Michael Foster (1689–1763) was one of the most respected jurists of the eighteenth century. In 1743 he was recorder for the city of Bristol, a judicial post that required him to prosecute criminal cases such as the one which led to his discussion of the Royal Navy’s right to impress or forcibly recruit sailors. On April 25, 1743, Alexander Broadfoot, a seaman on the merchant ship Bremen Factor, killed a member of the press gang sent aboard his ship to press sailors for the sloop of war H.M.S. Mortar. Foster, concluding that the press gang was illegally constituted (it lacked the presence of an officer), prosecuted Broadfoot not for murder but for manslaughter. In presenting his case, however, Foster wrote a comprehensive defense of the practice of impressment, arguing that although not authorized by a specific statute, it was sanctioned by lengthy precedent and hence was part of common law. Foster published his argument as a pamphlet (Oxford, 1758). He later included it in a compilation of his court cases (Oxford, 1762).1 At some time, on the now-missing pages of one of those two publications, Franklin countered Foster’s arguments in extensive marginalia.
The last person that we know actually saw those marginalia was William Jones, the lawyer and oriental scholar who visited Passy in the spring of 1779.2 During that visit, in which their political discussions evidently touched on impressment, Franklin authorized Jones to retrieve his copy of “Sir Michael Foster’s little book,” which was in the keeping of a British friend.3 Jones had obtained the book by September 17, 1781, when he thanked Franklin (below). Because we cannot be sure when the marginalia were composed — the record is strangely silent on the subject — we publish them in association with Jones’s acknowledgment. We assume, however, that they were written during Franklin’s second mission to England (1764–1775), when the question of whether Americans were liable to impressment was highly controversial, and when Franklin compared the practice to slavery in a 1770 newspaper article.4
What we print below is the sole surviving manuscript version of Franklin’s remarks, produced under his direction and preserved by his grandson Temple. It is based on the original marginalia but dates from a later period, and tells a complicated story. Franklin obviously decided, at a later date, to publish his comments. Using the 1762 edition of Foster’s cases, he excerpted the relevant passages from the twenty-five pages of text, underlined key phrases, inserted capital letters as the equivalent of footnote markers, and wrote his remarks (introduced by the corresponding capital letters) on separate sheets. All this was copied by a secretary whose hand we do not recognize, and returned to Franklin. He corrected that fair copy, added the title above the text excerpts, and also added a heading at the top of the first sheet of his notes: “Remarks, or Notes upon the foregoing Extracts.” This much was prepared by the beginning of 1788, when these notes by themselves (keyed only to page numbers in Foster’s work) appeared embedded in a letter to the editor of The Repository, a London magazine.5
After this fair copy had been produced, Franklin added several pages’ worth of new remarks. He drafted them on separate sheets and indicated in various ways where they were to be inserted in the text (rarely using capital letters, but more often keying them to page numbers or simply repeating phrases from the text). In some cases, he lined out preexisting notes. We have found no indication that this expanded and emended manuscript was published during Franklin’s lifetime. William Temple Franklin, however, included it in his edition, complete with Franklin’s title and the excerpts from Foster’s text.6
Although, as we have explained, Franklin originally intended to present Foster’s text excerpts in a block, followed by his commentary, his later additions were quotes or paraphrases of Foster’s work followed directly by his own remarks. To avoid needless confusion, we have decided to print the entire text according to that latter method. Where Franklin inserted capital letters, we show them. Where he did not, we reproduce his indications of where the notes belong.7
[before September 17, 1781]
“The only Question at present is, Whether Mariners, Persons who have freely chosen a Sea-fareing life, Persons whose Education and Employment have fitted them for the Service, and inured them to it, Whether such Persons may not be legally Pressed into the Service of the Crown, whenever the Publick Safety requireth it, Ne quid detrimenti Respublica capiat.8
“For my part I think they May. I think the Crown hath a Right to Command the Service of these People, whenever the public Safety calleth for it. The same Right that it hath to require the*9 personal Service of every ManA able to bear Arms in case of a sudden Invasion or formidable Insurrection. The Right in both cases is founded on one and the same Principle, the Necessity of the Case in Order to the Preservation of the Whole.—”
A The Conclusion here from the Whole to a Part does not seem to be good Logic. Where the Personal Service of every Man is call’d for, there the Burthen is equal. Not so where the Service of a Part is call’d for, and others excus’d. If the Alphabet should say, Let us all fight for the Defence of the whole, that is equal and may therefore be just. But if they should say, Let A.B.C. and D. go out and fight for us, while we stay at home and sleep in whole Skins; that is not equal and therefore cannot be just.
“It would be time very ill spent to go about to prove that this Nation can never be long in a state of Safety, our Coast defended and our Trade protected, without a Naval Force equal to all the Emergencies that may happen. And how can We be secure of such a Force? The keeping up the Same Naval Force in time of Peace, which will be absolutely necessary for our Security in time of War, would be an absurd, a fruitless, and a ruinous Expence.
“The only Course then left, is for the Crown to employB upon Emergent Occasions the Mariners bred up in the Merchants Service.—”
B. Employ, if you please. The Word signifies, engaging a Man to work for me by offering him such Wages as are sufficient to induce him to prefer my Service. This is very different from compelling him to work for me on such Terms as I think proper.
“And as for the Mariner himself, He when taken into the Service of the Crown only changeth Masters for a time: His Service and employmentC continue the very same, with this Advantage, that the Dangers of the Sea and Enemy are not so great in the Service of the Crown, as in that of the Merchant.”
C His Service and Employment continue the very same, &c. These are false Facts. His Service and Employment are not the same. Under the Merchant he goes in an un-arm’d Vessel not obliged to fight, but only to transport Merchandize. In the King’s Service he is oblig’d to fight, and to Hazard all the Dangers of Battle. Sickness on board King’s Ships, is also more common and more Mortal. The Merchant’s Service too he can quit at the End of a Voyage, not the King’s. Also the Merchant’s wages are much higher.
“I am very sensibleD of the Hardship the Sailor suffereth from an Impress in some particular Cases, especially if Pressed Homeward-bound after a long Voyage. But the Merchants who hear Me know, that an Impress on Outward-bound Vessels would be attended with much greater Inconveniencies to the Trade of the Kingdom; and yet That too is sometimes Necessary. But where two Evils present, a wise Administration, if there be room for an Option, will choose the Least.”D2
D I am very sensible &c. Here are two things put in Comparison that are not comparable, viz. Injury to Seamen, and Inconvenience to Trade. Inconvenience to the whole Trade of a Nation will not justify Injustice to a single Seaman. If the Trade would suffer without his Service, it is able and ought to be willing to offer him such Wages as may induce him to afford his Service voluntarily.
D2 The least. The least Evil in case seamen are wanted, is to give them such wages as will induce them to inlist voluntarily. Let this Evil be divided among the whole Nation, by an Equal Tax to pay such Wages.
Page 159.
“War itself is a great Evil, but it is chosen to avoid a greater. The Practice of Pressing is one of the Mischiefs War bringeth with it. But it is a Maxim in Law, and good Policy too, that all private Mischiefs must be borne with Patience for preventing a National Calamity.E And as no greater Calamity can befall Us than to be weak and defenceless at Sea in a time of War, so I do not know that the Wisdom of the Nation hath hitherto found out any Method of Manning our Navy, less InconvenientE2 than Pressing; and at the same time, equally Sure and Effectual.”
E Where is this Maxim in Law and good Policy to be found? And how came that to be a Maxim which is not consistent with Common Sense. If the Maxim had been that private Mischiefs which prevent a National Calamity ought to be generously compensated by that Nation, one might have understood it. But that such private Mischiefs are only to be borne with Patience is absurd.
E2 Less inconvenient. Less inconvenient to whom? To the Rich indeed, who ought to be taxed. No Mischief more inconvenient to poor Seamen could possibly be contrived.
“The Expedient of a Voluntary Register which was attempted in King William’s time, had no Effect.
“And some late Schemes I have seen appear to Me more inconvenient to the Mariner and more inconsistent with the Principles of Liberty, than the Practice of Pressing: and, what is still worse, they are in my Opinion totally Impracticable.”F
F Twenty ineffectual or inconvenient Schemes will not justify one [torn: that is?] unjust.
“Thus much I thought proper to say upon the Foot1 of Reason and publick Utility, before I come to speak directly to the Point of Law.”2
Text, Page 159
The Crown’s Right of Impressing Seamen is grounded upon Common Law.3
If impressing Seamen is of Right by Common Law, in Britain, Slavery is then of Right by Common Law; there being no Slavery worse than that Sailors are subjected to.
Ibid. The Result of evident Necessity.4
Impressing not so, if the End might be answered by giving higher Wages.
Page 160
There are many Precedents of Writs for Pressing.5
“Some are for Pressing Ships.
“Others for Pressing Mariners.
“And others for Pressing Ships and Mariners.
“This general View will be sufficient to let us into the Nature of these Precedents. And though the Affair of Pressing Ships is not now before Me, yet I could not well avoid mentioning it; because many of the Precedents I have met with and must cite, go as well to That, as to the business of Pressing Mariners. And taken together, they serve to shew the Power the Crown hath constantly exercised over the whole Naval Force of the Kingdom as well Shipping as Mariners, whenever the Publick Service required it.
“This however must be observed, that no Man served the Crown in either Case at his own Expence. Masters and Mariners received full Wages,H and Owners were constantly paid a full Freight.”
H6 Probably the same they received in the Merchts. Service. Full Wages for a Seaman in time of War, are the Wages he has in the Merchant’s Service in War-Time. But half such Wages is not given in the King’s Ships to impress’d Seamen.
Text. page 173.
“Do not these Things incontestably presuppose the Expediency, the Necessity, and the Legality of an Impress in general. If they do not, one must entertain an Opinion of the Legislature acting and speaking in this manner which it will not be decent for Me to mention in this Place.”
I will risk that Indecency, and mention it. They were not honest Men; they acted unjustly by the Seamen (who have no Vote in Elections, or being abroad cannot use them if they have them) to save their own Purses and those of their Constituents. Former Parliaments acted the same Injustice towards the Labouring People, who had not forty Shillings a Year in Lands; after depriving them wickedly of their Right to Vote in Elections, they limited their Wages, and compell’d them to work at such limited Rates, on Penalty of being sent to Houses of Correction. See 8H6, chap. 7 & 8.
Page 174.
“I readily admit that an Impress is a Restraint upon the Natural Liberty of those who are liable to it. But it must likewise be admitted on the other Hand, that every Restraint upon Natural Liberty is not Eo Nomine7 illegal, or at all inconsistent with the Principles of Civil Liberty. And if the Restraint be it to what Degree soever, appeareth to be necessary to the Good and Welfare of the Whole, and to be warranted by Statute-Law, as well as immemorial Usage, it cannot be complained of otherwise than as a private Mischief: which as I said at the beginning, must under all Governments whatsoever, be submitted to for avoiding a publick Inconvenience.”I
I When the Author speaks of Impressing Page 158. he diminishes the Horror of the Practice, as much as possible, by presenting to the Mind one Sailor only suffering a Hardship, as he tenderly calls it, in some Particular Cases only; and he places against this private Mischief the Inconvenience to the Trade of the Kingdom.— But if, as I suppose is often the Case, the Sailor who is press’d and oblig’d to serve for the Defence of this Trade at the Rate of 25 s. a Month, could have had £3.15. s. in the Merchant’s Service, you take from him 50 s. a Month: and if you have 100,000 in your Service, you rob that honest industrious part of Society, and their poor Families, of £250,000 per Month or £3,000,000 a Year, and at the same time oblige them to hazard their Lives in fighting for the Defence of your Trade; to the Defence of which all ought indeed to contribute, (and Sailors among the rest) in proportion to their Profits by it; but this £3,000,000 is more than their Share if they did not pay with their Persons; and when you force that, methinks you should excuse the other.
But it may be said, to give the King’s Seamen Merchant’s Wages would cost the Nation too much, and call for more Taxes. The Question then will amount to this; Whether it be just in a Community, that the Richer Part should compell the Poorer, to fight for them and their Properties, for such Wages as they think fit to allow, and punish them if they refuse? Our Author tells us it is legal. I have not Law enough to dispute his Authorities, but I cannot persuade myself that it is equitable. I will however own for the present that Pressing may be Lawful when necessary; but then I contend that it may be us’d so as to produce the same good Effect, the publick Security, without doing so much horrible Injustice as attends the Impressing common Seamen. In order to be better understood I would premise two things 1st: That Voluntary Seamen might be had for the Service, if they were sufficiently paid. The Proof of this is, that to serve in the same Ships, and incurr the same Dangers, you have no Occasion to Impress Captains, Lieutenants, Second Lieutenants, Midshipmen, Pursers, nor any other Officers. Why but that the Profits of their Places, or the Emoluments expected, are sufficient Inducements. The Business then is to find Money by Impressing, sufficient to make the Sailors all Volunteers as well as their Officers: and this without any fresh Burthen upon Trade: The second of my Premises is, that 25 s. a Month with his Share of the Salt Beef, Pork and Peaspudding, being found sufficient for the Subsistence of a hard working Seamen, it will certainly be so for a sedentary Scholar or Gentleman. I would then propose to form a Treasury, out of which Encouragements to Seamen should be paid. To fill this Treasury, I would Impress a Number of Civil Officers, who at present have great Salaries, oblige them to serve in their respective Offices for 25 s. per Month, with their Share of the Mess Provisions, and throw the rest of their Salaries into the Seaman’s Treasury. If such a Press Warrant was give me to execute, the first thing I would press should be a Recorder of Bristol or a Mr. Justice Forster, because I might have need of his edifying Example to show how such Impressing ought to be borne with; for he would certainly find that tho’ to be reduced to 25 s. per Month might be a private Mischief, yet that agreable to his Maxim of Law and good Policy, it ought to be borne with Patience, for preventing a National Calamity. Then I would press the rest of the Judges; and opening the Red Book, I would press every civil Officer of Government from £50. a year up to £50,000 which would throw an immense Sum into our Treasury; and these Gentlemen could not well complain, since they would receive their 25 s. a Month and their Rations, and that too without being oblig’d to fight. Lastly I think I would Impress8 the King, and confiscate his Salary; but from an ancient Prejudice I have in favour of that Title, I would allow the Gentleman Merchants Pay. I could not well go farther in his Favour; for to say the Truth, I am not quite satisfied of the Necessity or Utility of that Office in Great Britain, as I see many flourishing States in the World governed well and happily without it.
Page 174.9
“It cannot be complained of otherwise than as a private Mischief, which must be submitted to for avoiding a public Inconvenience.”
I do not see the Propriety of this must. The private Mischief is the Loss of Liberty and Hazard of Life with only half Wages, to a great Number of honest Men. The public Inconvenience is merely a higher Rate of Seamen’s Wages. He who thinks such private Injustice must be done to avoid public Inconvenience may understand Law, but seems imperfect in his Knowledge of Equity.— Let us apply this Author’s Doctrine to his own Case. It is for the public Service that Courts should be held and Judges appointed to administer the Laws. The Judges should be bred to the Law, and skilful in it, but their great Salaries are a public Inconvenience. To remove the Inconvenience, Let Press Warrants issue to arrest and apprehend the best Lawyers, and compel them to serve as Judges for half the Money they would have made at the Bar. Then tell them, that tho’ this is to them a private Mischief, it must be submitted to for avoiding a public Inconvenience. Would the learned Judge approve such Use of his Doctrine?
Text, page 177.
“For I freely declare, that ancient Precedents alone, unless supported by modern Practice, weigh very little with me in Questions of this Nature.”
The modern Practice supported by antient Precedents weighs as little with me. Both the one and the other only show that the Constitution is yet Imperfect, since in so general a Case it doth not secure Liberty but destroys it; and the Parliaments are unjust, conniving at Oppression of the Poor, where the Rich are to be Gainers or Savers by such Oppression.
Text, page 179.
“I make no Apology for the Length of my Argument, because I hope the Importance of the Question will be thought a sufficient Excuse for me in that respect.”
The Author could not well have made his Argument shorter. It required a long Discourse to throw Dust in the Eyes of Common Sense, confound all our Ideas of Right and Wrong, make Black seem White, and the worse appear the better Opinion.
Notation in Franklin’s hand: Impress’d Men
9. This MS is a combination of a fair copy in an unknown secretarial hand, corrected by BF, and BF’s later additions and emendations. BF himself wrote the title at the top of the fair copy, as well as the centered page numbers.
1. Sir Michael Foster, “The Case of Alexander Broadfoot,” in A Report of some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases. To Which are Added Discourses upon a few Branches of the Crown Law (Oxford, 1762), pp. 154–79.
2. XXIX, 524–5, 570–1. One of Jones’s aims was to discuss the political situation with BF and as many other American leaders as he could meet: Garland Cannon, “Sir William Jones and Benjamin Franklin,” University College Record IV, no. 1 (October, 1961) 27–45.
3. Jones reported this to his friend George John Spencer, Viscount Althorp, after returning to London: “Sir Michael Foster’s little book you will read with pleasure and profit; a copy of it exists in England (though few know of it) with manuscript notes by Dr. Franklin: it is Franklin’s property, and I have his permission to claim it.” Garland Cannon, The Letters of Sir William Jones … (Oxford, 1970), I, 333. This reference suggests that BF may have originally written in a copy of the pamphlet.
4. XVII, 44. See also V, 363, 390, 412. For American views on impressment see Dora Mae Clark, “The Impressment of Seamen in the American Colonies,” in Essays in Colonial History presented to Charles McLean Andrews by His Students (New Haven and London, 1931), pp. 198–224; Jesse Lemisch, “Jack Tar in the Streets: Merchant Seamen in the Politics of Revolutionary America,” W&MQ, 3rd ser., XXV (1968), 371–407.
5. The Repository; Containing various Political, Philosophical, Literary, and Miscellaneous Articles (London, 1788), pp. 198–201. Sixteen years later Morellet published what purported to be a French translation of the notes but which was actually a faithful rephrasing, weaving BF’s statements into a continuous narrative with allusions to Foster. Morellet added an introduction of his own: Annales Littéraires de l’Europe VIII (1804), 150–7.
6. WTF, Memoirs …, III, 169–74.
7. WTF, grappling with the same problem, chose to publish BF’s commentary in the form of footnotes to Foster’s text.
8. From a formula used when consuls were called upon to use their emergency powers, “Videant consules ne quid respublica detrimenti capiat” (Let the consuls see to it that the republic does not suffer any damage).
9. [Foster’s note:] *This personal Service in cases of Extreme Necessity is a principal Branch of the Allegiance every Subject of England oweth to the Crown. See 11H7.c.1 and 1.E.3.c.5.16, 17.Car.1.c.28.
1. Here BF deleted a footnote marker “G,” and he also lined through the text of the note. This was part of his later revisions; the note did appear in the 1788 Repository. It read: “Your Reasoning indeed like a Lie, stands but on one Foot, Truth upon two.”
2. In the later revision, BF centered “G2” beneath this paragraph. This referred to a page of additions, where he indicated that he wanted to add two items to the text, with his attendant commentary. We publish them immediately following.
3. This is BF’s paraphrase of the following paragraph of Foster’s: “According to my present Apprehension (and I have taken some pains to inform Myself) the Right of Impressing Mariners for the publick Service is a Prerogative inherent in the Crown, grounded upon Common-Law, and recognized by many Acts of Parliament.”
4. BF excerpted this phrase from the sentence that followed the paragraph he had just paraphrased: “A general immemorial Usage not inconsistent with any Statute, especially if it be the Result of evident Necessity and withall tendeth to the Publick Safety, is, I apprehend, Part of the Common-Law of England.”
5. BF’s excerpt of the following: “As to the Point of Usage in the Matter of Pressing, I have met with a Multitude of Commissions and Mandatory Writs to that Purpose conceived in various Forms. …”
6. This paragraph replaces the original note, which had consisted of only the first sentence. BF added it on the sheet of emendations, prefacing it with, “Page 160. Mariners received full Wages.”
7. By its name.
8. The Repository refused to publish the rest of this paragraph and ended its text here. JA was probably referring to these comments when he wrote in his Autobiography (written in the early nineteenth century) that BF “wrote certain Annotations on Judge Foster’s discourse on the Legality of the Impressment of Seamen, in the Margin of the Book, and there introduced his habitual Accrimony against his Majesty.” Butterfield, John Adams Diary, IV, 150.
9. All the quotes and commentary from this point to the end were added during BF’s revision.