The points now to be
adjusted
were the boundaries, the
fisheries, and the claims of the loyalists.
fisheries, and the claims of the loyalists.
Hamilton - 1834 - Life on Hamilton - v2
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THE LIFE OF
one. It was followed by another, asking penhission, in
consequence of. ill health, and because no prospect existed
of any benefits from Spain, to visit either France or Hol-
land. Congress passed a resolution approving his opinions
as to the Mississippi, and had appointed him a commissioner
to treat for peace, yet, at the moment when every probabili-
ty existed of a negotiation being opened at Paris, would
not grant him permission to leave Spain, and proceed to
the place where this negotiation was to be conducted.
Other motives may have influenced their decision; but it
is not an improbable conjecture, that his sentiments as
to the policy of France, and the indignation he had
expressed as to his instructions, had weight in this deter-
mination.
The daily subterfuges of Spain, countenanced by the
ambassador of France, satisfied Jay that Spain had re-
solved not to acknowledge the independence of the United
States. He declared, " that many reasons induced him to
think that France did not, in fact, wish to see us treated
as independent by other nations until after a peace, lest
we should become less manageable in proportion as our
dependence on her shall diminish; and that England would
be the first nation to acknowledge that independence. " Yet
he properly affirmed, " that as long as France continued
faithful, that we ought to continue hand in hand to prose-
cute the war, until all their as well as all our reasonable
objects can be obtained by a peace; for that he would
rather see America ruined than dishonoured. "
Having received an invitation from Franklin to join him,
Jay soon after proceeded to Paris, where he had the pa-
triotism to act upon his commission, and the firmness to
disregard his instructions. On his arrival there, on the
twenty-third of June, he found the aged minister alone;
Adams being yet in Holland, Laurens a prisoner in En-
gland, Jefferson, deterred, as he says, " by the uncommon
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? HAMILTON.
129
vigilance of the enemy's cruisers," remaining in Ame-
rica. * f
The British minister had in the interval employed agents
to ascertain the disposition of the American commission-
ers, as to a waiver of an express recognition of the inde-
pendence of their country. They reached Paris after
Jay's arrival there, and returned convinced that every at-
tempt to inveigle the United States must fail.
These overtures alarmed Vergennes. J He saw that the
capture of Yqrktown had placed England and the United
States in a position which must result in peace. How to
control its terms, was with him the only remaining ques-
tion, wearied as France was with the continued demands
for aid. His efforts to exclude the United States from a
general congress, and to prevent a direct negotiation with
Great Britain, had succeeded. Thus Paris was still the seat
of negotiation. It was important to thwart any attempts
* Jay's Life, vol. 1, p. 170.
t "Such was the state of my family, that I could not leave it, nor could
I expose it to the dangers of the sea, and of capture by the British ships then
covering the ocean. I saw, too, that the labouring oar was really at home,
where much was to be done of the most permanent interest, in new model-
ling our governments, and much to defend our fanes and firesides from the
desolations of an invading enemy, pressing on our country in every point. "--
Jefferson's Works, vol. 1. p. 41.
X "The letter in the 6rst page of the Gazette of this morning," Madison
wrote Randolph, " was written by Mr. Marbois. In an evening of promis-
cuous conversation I suggested to him my opinion that the insidiousness of
the British court, and the good faith of our ally, displayed in the late abor-
tive attempt of the former to seduce the latter, might with advantage be
made known, in some form or other, to the public at large. He said he
would think of the matter, and next day sent me the letter in question, with
a request that I would revise and translate it for the press, the latter of which
was done. I mention this, that you may duly appreciate facts and senti-
ments contained in this publication. " This was suggested by propositions
of England for a separate peace--called by Madison an "insidious step. "--
1 Mad. 131,141. It may be asked, Did England form the alliance against
herself? Was she bound to respect it ? .
17
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THE LIFE OF
to transfer it elsewhere. With this view a verbal commu-
nication was made by the French minister to the secretary
of foreign affairs, calling upon congress to declare, " that
in case commissioners offered to treat upon this continent,
they should be referred to the ministers of the United
States, who are provided with instructions on this subject
in Europe ; that the court of London should address itself
to these, and that it is impossible that the seat of negotia-
tion should be in America. "*
This suggestion produced the desired result. A reso-
lutionf was reported by Madison, which declared, in case
such overtures should be made, that " congress will not de-
part from the measures which they have heretofore taken
for preventing delay, and for conducting the discussions
in confidence and in concert with his most christian ma-
jesty. "
Madison's report of January had, in the mean time, re-
mained with the committee to which it was referred. It
was not brought forward until August, when a paper was
presented to congress, prepared by Edmund Randolph,
containing facts and observations on the claims not inclu-
ded in the ultimatum of the fifteenth of June, seventeen
hundred and eighty-one.
This report was in conformity with the previous one of
Madison. A motion for revoking the power given to
France was again made. "It was pushed," Madison wrote
Randolph," with the expected earnestness, but was parried,
and will issue, I believe, in an adoption of your report,
with a representation thereupon to the court of France. " J ?
* 3 D. C. 297. t May 31, 1782. --3 S. J. 138.
t Madison Papers, v. 1, p. 159.
? "In my last I informed you that the motion to rescind the control
given to France over the American ministers had been parried, and would
probably end in an adoption of your report. It was parried by a substitute
so expressed as to give a committee sufficient latitude m reporting without
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? HAMILTON.
131
Another conference was had in September with the
French minister; on this occasion, extracts from several
letters addressed to him by the Count De Vergennes, were
read: one of the ninth of April, stating that "their joint
efforts would be crowned with success, if on the one hand
making the greatest exertions to procure the completest
satisfaction, they on the other hand confined themselves
within such bounds of moderation* as would give no um-
brage to any one of the powers at war with Great' Bri-
tain. " Others of the second of May and twenty-eighth
of June were produced, intimating that it was now evi-
dently the object of Great Britain to lessen their exertions
on this continent, to adopt a defensive war, and having
succeeded in one of these objects, to return against the
United States with redoubled efforts. Congress were ex-
horted to declare that no peace but a general one would
be attended to; they were assured that when the negotia-
tions were entered into with sincerity, France would exert
her good offices on all points connected with the prosper-
ity of the United States; that congress were themselves
sensible of the distinction between the conditions of jus-
tice and rigour, and those of convenience and compliance,
which depended on the good or bad situation of affairs;
that though the circumstances of the allies were very
,promising, such events might happen as might make it
advisable to adopt the part of moderation. The necessity
of England being convinced of the impossibility of treat-
ing separately was urged, and they were called on to
proclaim that the United States would not make peace
without the concurrence of their ally, and that if any
implying on the part of congress a design to alter past instructions; the
composition of the committee appointed according well with the object
of the substitute," &c. --Madison to Edmund Randolph. --Madison Papers,
T. 1. 160. --August 20, 1782.
* September 24, 1782.
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? 132 THE LIFE OF
overtures were to be made, the American plenipotentia-
ries were sufficiently empowered to receive jhem. .
This communication was referred to a larger committee.
Their report, after expressing the utmost confidence in
the assurances and good offices of France, declared,* that
"considering the territorial claims of these states as here-
tofore made, their participation of the fisheries, and of the
free navigation of the Mississippi, not only as their indu-
bitable rights* but as essential to their prosperity, they
trust that his majesty's efforts will be successfully employ-
ed to obtain a sufficient provision and security for those
rights. Having avowed, " that any claim of restitution or
compensation for property confiscated, will meet with in-
superable obstacles, not only on account of the sove-
reignty of the individual states," but of the wanton depre-
dations of the enemy, they express a further trust, that
"the circumstances of the allies at the negotiations for
peace will be so prosperous, as to render these expecta-
tions consistent with the spirit and moderation recommended
by his majesty, f
The wishes of the king of England had, during this
period, been consulted by his ministry, and an act was
passed " to enable him to conclude a peace or truce" with
certain "colonies" therein mentioned. On the twenty-
fifth of July, Oswald received a warrant to treat in pursu-
ance of this act. This warrant was submitted to Ver-
gennes, Franklin, and Jay.
Vergennes gave his opinion that it might be acted upon,
"that names signified little, that an acknowledgment, in-
stead of preceding, must, in the natural course of things,
be the effect of the treaty, and that it would not be rea-
* October 3, 1782. --3 S. J. 243.
t This report was from Madison, Duane, Rutledge, Montgomery, and
Carroll.
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? HAMILTON.
133
sonable to expect the effect before the cause. " He urged
an exchange of powers with the British commissioners, on
the ground that an acceptance of them would be a tacit
admittance of it.
Franklin had always intended to secure the inde-
pendence of the United States; but as to the mode, it
has been seen that he would have been satisfied with a
tacit acknowledgment of it. Adhering to this opinion,
he concurred with Vergennes, and sustained this course
on the ground that it was an acquiescence with the
views of that minister, as prescribed by his instruc-
tions. Jay dissented from this opinion; he considered
the instructions of seventeen hundred and seventy-nine,
framed by Gouverneur Morris, as indicating the sentiments
of the nation before its counsels had been influenced by
France; and although he then voted for a tacit recogni-
tion, the position of the country had changed--the Ameri-
can arms had triumphed, and England had resolved on
peace.
These considerations would have been sufficient of them-
selves, but there was another which could not have been
without weight. Whatever policy might have been pre-
viously adopted, the public declaration of Lord Shelburne
left no alternative consistent with the honour of the coun-
try, but an open, explicit, preliminary acknowledgment
of its independence. Jay did not conceal from Franklin
the suspicions which the readiness of Vergennes to waive
this point had produced. The French minister had, on
previous occasions, when he knew that such a requisition
was an insuperable bar to all negotiation on the part
of England, declared that it must be insisted upon. That
with all the advantages in his favour, so practised a
statesman should have abandoned this opinion, if he had
ever seriously entertained it, without some motive, was
not to be supposed. The only adequate motive to be as-
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THE LIFE OF
signed was, a desire to defer this acknowledgment, to
make it an article of treaty, and thus dependent upon all
the contingencies of such a treaty, until, as the Spanish
minister had intimated, the conclusion "of a general
peace. " Spain had claims to which the United States
were unwilling to accede; France had demands upon
Great Britain, to the attainment of which, the support of
Spam was important. The United States were under no
engagements to continue the war for the promotion of the
views of Spain. But the treaty of alliance compelled them
not to cease hostilities until their independence was se-
cured. The British ministry held their places on the
tenure of peace with America; but if that had been
effected, Vergennes well knew that the temper of the Bri-
tish nation would have sustained a war with France or
Spain from motives of policy or resentment. Thus, not
only the question whether to promote the designs of Spain
as to the American territory, or to obtain advantages from
Great Britain, or even a general peace might depend on
deferring the recognition by England of the United States
as a nation. The strong repugnance of the British
monarch to an express acknowledgment might also have
induced a belief, if that should be relinquished by her instru-
mentality, that France might gain an equivalent for this
service. Acting upon a full view of his position, Jay ap-
prised Oswald of his objections to his commission; who, to
remove them, disclosed to him the instructions to Sir Guy
Carleton to admit independence in the first instance. Jay
avowed that he would have no concern in any negotia-
tion "that did not consider his countrymen as independent
people," and drafted a commission to be issued by Great
Britain.
A second discussion arose with the French minister on
the reception of Oswald's powers; Vergennes remained
of his former opinion, and asserted that an acknowledg-
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? HAMILTON.
135
ment previous to a treaty was unnecessary, denied that
it was sufficient for the United States to be treated with
on the ground of equality as other nations were, but
insisted that an explicit acknowledgment of independence
in the treaty was "very necessary," to prevent future
claims. The reply of the British ministry to Oswald pro-
ceeded on the idea of an acknowledgment as an article
of treaty. * This course was admitted by him to have
been adopted in consequence of the intimation of Ver-
gennes that it would be sufficient.
A strong expression of the determination not to permit
the question of independence to be the subject of a treaty,
and thus implying that America was not then independent,
was embodied in a letter from Jay to Oswald, which was
submitted to Franklin, who disapproved it, lest it might
possibly be productive of future embarrassment, and as
involving a departure from their instructions. After weigh-
ing this objection, Franklin having declined to sign this
letter, Jay gave it to Oswald. Vergennes had, meanwhile,
proposed that Oswald should by letter declare that he
treated with the United States as independent; an ex-
pedient which was, of course, rejected. The fixed pur-
pose of France was manifested upon another occasion.
In consequence of an intimation to that effect by the court
of Spain, a conference was held with their envoy at Paris.
In this conference, the claims of Spain having been set
forth, Jay, without entering into the discussion, presented
a copy of his commission, anfl asked if the Spanish envoy's
powers were equally extensive.
He affirmed that they were, but did not produce them.
Vergennes, who was present, remained silent; but Ray-
neval, the secretary of the council, urged that this prelimi-
nary should be dispensed with. f
?
* 8 D. C. 143. ^ray's Life, v. 1, p. 144. t 8 D. C. 201.
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THE LIFE OF
Having ascertained that through the interference of
France, the unsatisfactory powers to Oswald were framed,
and that Rayneval had proceeded secretly to London,
there was enough to awaken the suspicions of any pru-
dent minister. These suspicions were confirmed by the
disclosure to Jay of the contents of the recent despatch
of Marbois, and on the following day he sent a secret
agent to England, to represent the absolute necessity of a
preliminary acknowledgment of independence, of a mu-
tual participation in the fisheries and in the navigation of the
Mississippi being conceded, and that it was the policy of
France to postpone this recognition. This communication
had the intended effect. A commission* to Oswald, "to
negotiate with commissioners vested with equal powers by
and on the part of the United States of America," was
received in Paris late in September.
The points now to be adjusted were the boundaries, the
fisheries, and the claims of the loyalists.
The progress of the negotiation confirmed the suspicions
entertained by Jay as to the policy both of France and
Spain, with respect to the territorial limits of the United
States. The importance of obtaining the alliance and aid
of the Spanish ministry was such a# to have led him to
think, previous to his mission, that a cession might wisely
have been made of the navigation of the Mississippi, as an
inducement to such an alliance. But when Spain had, in
order to promote her own views, entered into the war,
when she refused to recognise the United States as a na-
tion, and failed in her engagements as to aid, every induce-
ment to such a concession ceased; and he dissuaded con-
gress from granting it, on the ground that it would render
a war with Spain unavoidable, and "that he should look on
his subscribing to the one, as fixing the other. "
* Sept. 21, 1782.
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? HAMILTON.
137
In the project of a treaty, in obedience to his instruc-
tions, which he was aware were known to Spain, he of-
fered this cession, but upon his own responsibility annexed
a declaration, "that if its acceptance, together with the pro-
posed alliance, should be postponed to a general peace, the
United States would not be bound by this offer. " Cir-
cumstances occurred subsequently to this, which had a
strong influence on the action of congress. On the cap-
ture of Pensacola, Spain, instead of providing in the capitu-
lation that the British troops should not serve against the
United States, permitted them to reinforce their garrison
at New-York. Similar terms were granted in the surren-
der of the Bahama islands.
These occurrences excited strong indignation in America,
which was increased by the unjustifiable interruption of
the Havana trade,* in consequence of which, American
vessels were detained a long time in the service of Spain, no
compensation for the delay made, and then sent away
without convoy, and many of them captured. But the
event which made most impression was an expedition of a
party of Spaniards and Indians from St. Louis, who seized
a small post on the St. Joseph, occupied by a few English
soldiers, took possession of it with its dependencies, and
also of the river Illinois, in the name of his catholic ma-
jesty, and displayed the standard of Spain as a formal
assertion of her title. This act was decisive of the pur-
poses of that government.
A committee was appointed by congress to revise the
instructions to Jay, (prepared by Madison,) not to insist
upon the free navigation of the Mississippi. Their report
would have exposed the United States to the risk, if ^pain
chose to claim it on the ground of the secret article with
France, of being compelled to conclude a treaty "on her
* 8D. C. 211.
18
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TIIE LIFE OF
first requisition. " It was amended on the next day* at the
instance of Rutledge, so as to direct him " to forbear making
any overtures or entering into any stipulations in conse-
quence of overtures previously made by him; and he was
authorized to leave Spain, and go into any other part
of Europe, whenever the state of his health might re-
quire it. "
If the American commissioner had any doubts remain-
ing as to the policy of Spain, they were removed by the
disclosure of the contents of an intercepted despatch from
the French ambassador at Madrid to Vergennes. This
document represented the strong aversion of the catholic
court to any American settlements on the Mississippi, as
they would engross the trade of New Orleans and Mexico;
that Spain was determined to make the Indians a barrier
between their possessions; "that she would find the
means, if necessary, to obstruct their progress; and that
France could not afford" Spain a greater proof of "her"
attachment, than in employing " her" influence in the Uni-
ted States to divert their views from the navigation of the
Mississippi. '! '
In the conference which has been mentioned between
D'Aranda and Jay on the twenty-ninth of June, the former
expatiated on the rights of Spain to a large tract of coun-
try east of the Mississippi, as conquests from England, re-
ferring to the post recently taken on the St Joseph, and
remarked as to such part of that region as she had not con-
quered, that it was the territory of free and independent
nations of Indians, whose lands could not be claimed by
the United States. J She then proposed a longitudinal
line as an arbitrary boundary, which would have dissev-
ered from the United States a large portion of her west-
ern territory- "The extravagance of this line" was indi-
? Aug. 1,1782. t Life of Jay, vol. 1, p. 139. X 8 D. C. 150.
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? HAMILTON.
13>>
cated by Franklin and Jay to Vergennes, but he, as before,
was reserved. The secretary Rayneval took up the discus-
sion, urged Jay again to treat without any exchange of
powers with D'Aranda, and subsequently submitted to
him a memoir which defended at length the claims of
Spain, and proposed to the United States the admission
of another arbitrary limit.
This proposition implied that Great Britain was entitled
to all the country north of the Ohio, and left in question
the rights of the United States to the extensive western
region above the thirty-first degree of latitude. These sug-
gestions were considered as part of that policy which had
instructed* De Grasse "to withdraw his fleet when the
enemy were at our feet, and a month's delay would have
reduced either New-York or Charleston;" and which
would have postponed the recognition of independence to
the conclusion of a general peace.
The desire of France to confine the limits of the United
States, was again evinced about the time of the return of
Oswald's full commission. Upon an intimation by D'Aran-
da of a wish to commence the negotiation, Jay expressed
his readiness when their powers should be exchanged.
D'Aranda inquired whether Jay had not been apprised
of his having been authorized by the prime minister of
Spain. He admitted it, but required the exchange of their
commissions. This w&s objected to on the ground that
Spain had not acknowledged our independence. Ver-
gennes urged a treaty with Spain in the same manner as
with France--that Spain did not deny the independence--
and proposed that a conference should be held without
saying a word about it, stating that an acknowledgment
of it would be the natural effect of the proposed treaty.
Jay replied, that, being independent, "both the terms of his
* 3D. C. 355.
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THE LIFE OF
commission and the dignity of America forbade his treat-
ing on any other than an equal footing. "
On the same occasion, Rayneval urged the adoption of
the conciliatory line he had proposed, and the advantage
of placing the Indians on each side of it under the protec-
tion of the respective sovereigns. Jay answered, that as
far as these demands affected the Indians, it was a question
between them and the United States, and remarked upon
the recency of these territorial claims. Rayneval in reply
observed, "that the Spanish prime minister had not un-
derstood the subject, and imputed his former ideas of the
United States extending to the Mississippi to his ignorance
of that matter. " A reply that left it not difficult to con-
jecture by whom these recent claims had been suggested.
That Spain should have sought these advantages, might
have been anticipated from the policy of that nation.
How France could have sustained the proposed mutilation
according to an arbitrary line, involving a principle by
which it might have been extended much further east, it is
difficult to conceive, when the grounds of the American
pretensions are understood. By the treaty of Paris, all the
region claimed by the United States had been ceded to the
sovereign of Great Britain. This, by charter, she had
granted, and defined as extending to the Mississippi. Thus
it was held previous to the revolution, and thus under the
same limits it (by the revolution) devolved upon those who
had acquired the sovereignty of this country.
France had acknowledged the independence of the Uni-
ted States; she had by treaty admitted their territorial
claims; she had by treaty guarantied all the possessions
which then belonged to them, to take effect at the instant
of a war between France and Great Britain; which war,
preceding that between Spain and England, precluded all
pretensions on the part of Spain by right of conquest.
Immediately after the commission was received by Os-
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? HAMILTON.
141
wald, the commissioners entered upon the negotiation,
with an express agreement on each part, that it should not
be disclosed to France. It commenced on the first of
October, and on the eighth of that month, articles, of
which the draft was prepared by Jay, were mutually
signed.
After an express preliminary acknowledgment of the
independence of the United States, their boundaries were
defined as prescribed in the original ultimatum of seven-
teen hundred and seventy-nine. The right of fishing and
of curing fish at the accustomed places, as urged by Gou-
verneur Morris, the author of this ultimatum, but then
rejected by congress, was granted. The navigation of the
Mississippi was declared to be forever free and open to
both nations, and the citizens and subjects and ships of
each nation were to enjoy the same protection and privi-
leges in each other's ports and countries, respecting com-
merce, duties, and charges, as were enjoyed by native
subjects, saving to the chartered trading companies of
Great Britain their exclusive rights.
The decision of the British cabinet upon these articles
was not received until the twenty-third of October, when
it was stated that objections arose as to the extent of the
boundaries and the absence of any provision for the tories,
to confer upon which, a person was deputed from Lon-
don.
Three days after, on the twenty-sixth* of October,
Adams arrived at Paris, and co-operated in support of the
terms which Jay had been the principal instrument in ob-
taining. It has been studiously laboured to give to Adams
the chief merit in this transaction; but it is only necessa-
ry to advert to the state of the negotiation when he arrived
at Paris, to decide to whom it belongs.
* Adams to Livingston, 6 D. C. 436.
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THE LIFE OF
On resuming the negotiation, an effort was made to con
tract the limits of the United States, to bring the bounda-
ry to the Ohio, and to settle the loyalists in the vicinity of
the Illinois.
The court of St. James insisted upon retaining all the
territories comprehended within the province of Quebec,
by the acts of parliament respecting it. They contended
that Nova Scotia should extend to the Kennebec, and
claimed all the lands in the western country and on the
Mississippi not expressly included in our charters and go-
vernments, and also all not previously granted by the
crown. But the limits originally proposed were adhered
to, and, with some concessions to the east and north, were
acknowledged.
The points chiefly contested were the restitution, com-
pensation, and amnesty to the adherents of Great Britain,
and a limitation of the fisheries.
The former of these was most urged. It will be re-
corded to the honour of England, that it was the first in-
sisted upon and the last relinquished, and relinquished not
of choice, but because the British government were satis-
fied that congress did not possess the power to make or to
fulfil the necessary stipulations. A substitute was inserted
recommending the restitution of the confiscated estates.
No further confiscations nor prosecutions were to be per-
mitted, and all existing prosecutions were to be discon-
tinued. An express stipulation was also made, that no
legal impediment should be interposed to the full recovery,
in sterling money, by the creditors of either side, of all
bona fide debts previously contracted. All prisoners
were to be discharged; the American possessions were to
be evacuated without the destruction or deportation of
negroes or other American property; and conquests sub-
sequent to the execution of these articles were to be le-
stored without compensation. A separate and secret
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? HAMILTON. 143
article was added, defining the boundary between West
Florida and the United States, in case Great Britain should
recover, or be put in possession of it at the conclusion of
the war. The questions as to the fisheries were much de-
bated, and were satisfactorily adjusted, after a demand of
compensation for injuries being proposed by Franklin and
abandoned.
The policy of France with respect to these particulars,
also produced in the minds of the commissioners much
dissatisfaction. The details of the discussion as to the
fisheries are not preserved with sufficient minuteness to en-
able a very accurate judgment to be formed of the several
propositions made. Acting upon the instructions of the
fifteenth of June, seventeen hundred and eighty-one,
Franklin made no mention of this great interest until some
time after the arrival of Jay.
His demand of this right, which congress declared was
"no less indispensable in its exercise" than "indisputable
in its principles,"* was made to the British negotiator early
in July. It appears that this important claim, then made
the first time, created not a little surprise in the breast of
the British commissioner.
It had been declared by Lord Chatham that the " exclu-
sive right" to the fisheries "was an object worthy of being
contested by the extremities of war. " The reluctance of
England to the participation of the Americans in a pur-
suit which, as a nursery of seamen, would enable them to
contest the supremacy of the ocean, may be supposed to
have created obstacles on the part of that maritime power.
Former events had shown to France the importance the
English crown attached to it; and hence, had a disposition
existed to interpose an obstacle to a treaty, none other
would have been more readily seized upon. What shape
3 s. J. 158.
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THE LIFE OF
this question assumed in the progressive negotiations be-
tween Great Britain and France, is not known; whether
that of an equal division of the fisheries, with a total ex-
clusion of the people of the United States, or a limitation
of them merely to the coast fishery; but the evidence is >>
complete, that France, if she did not oppose, at least looked
coldly on the claims of the United States.
In a conversation held between Jay and Rayneval, (after
Great Britain had resolved to grant them,) to an inquiry by
the latter," what we demanded as to the fisheries," on being
informed " that we insisted on enjoying a rjght in common
to them with Great Britain, he intimated that our views
should not extend further than a coast fishery, and insinua-
ted that pains had lately been taken in the eastern states to
excite their apprehensions and increase their demands on
that head. We told him that such a right was essential
to us, and that our people would not be content to make
peace without it; and Franklin explained very fully their
great importance to the eastern states in particular. He
softened his manner--observed that it was natural for
France to wish better to us than to England; but as the
fisheries were a great nursery for seamen, we might sup-
pose that England would be disinclined to admit others to
share in it, and that for his part he wished there might be
as few obstacles to a peace as possible. He reminded us
also, that Oswald's new commission had been issued poste-
rior to his arrival at London. "
The only remaining question that excites attention upon
which the course of France is to be investigated, is as to
the proposed stipulations with respect to the loyalists. In
the despatch from Adams,* the representations made by
the French envoy to congress, and the opinion of Ver-
gennes in favour of clemency and restitution, are imputed
* 6 D. C. 443-445.
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? HAMILTON.
145
to a knowledge that the American commissioners were in-
structed not to make any express engagements in their
behalf, and that congress had not a constitutional authority
to make them; and it is suggested that the pertinacity of
England in protecting her adherents, was "stimulated by
French emissaries. " Congress had indeed declared that it
was their "particular wish" that the return " of these fu-
gitives and exiles from their country" should "be most
strenuously opposed,"* and that any stipulations for their
return were dishonourable to the government of the states
and obnoxious to the people at large. But that France
should have interposed her influence in their behalf, against
a policy so impolitic and harsh, may be ascribed to other
motives--to the feelings of a nation which regarded loyal-
ty as a virtue--which supposed that clemency was the
proper attribute of a crown, and would not, at least on the
part of her ally, be a theme of reproach.
Vergennes, upon an annunciation being made to
him of the signature of the treaty, addressed a sharp re-
buke to Franklin for having concluded the preliminary
articles without any communication to him, " although the
instructions from congress prescribe that nothing should
be done without the participation of the king. " Franklin
mildly answered, that nothing had been agreed in the
preliminaries contrary to the interest of France, " and that
no peace was to take place between us and England till
France concluded hers. " He disclaimed any intentional
disrespect to the king, and asked to be excused "this single
indiscretion. "f
In a subsequent letter to the American government, af-
ter stating that Vergennes had been satisfied on this point,
he observed, in reference to a possible censure by con-
gress, "that their nomination of five persons to this ser-
? 3 S. J. 159. Report of Lovell, Carroll, and Madison, t 4 D. C. 57.
19
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?
? 128
THE LIFE OF
one. It was followed by another, asking penhission, in
consequence of. ill health, and because no prospect existed
of any benefits from Spain, to visit either France or Hol-
land. Congress passed a resolution approving his opinions
as to the Mississippi, and had appointed him a commissioner
to treat for peace, yet, at the moment when every probabili-
ty existed of a negotiation being opened at Paris, would
not grant him permission to leave Spain, and proceed to
the place where this negotiation was to be conducted.
Other motives may have influenced their decision; but it
is not an improbable conjecture, that his sentiments as
to the policy of France, and the indignation he had
expressed as to his instructions, had weight in this deter-
mination.
The daily subterfuges of Spain, countenanced by the
ambassador of France, satisfied Jay that Spain had re-
solved not to acknowledge the independence of the United
States. He declared, " that many reasons induced him to
think that France did not, in fact, wish to see us treated
as independent by other nations until after a peace, lest
we should become less manageable in proportion as our
dependence on her shall diminish; and that England would
be the first nation to acknowledge that independence. " Yet
he properly affirmed, " that as long as France continued
faithful, that we ought to continue hand in hand to prose-
cute the war, until all their as well as all our reasonable
objects can be obtained by a peace; for that he would
rather see America ruined than dishonoured. "
Having received an invitation from Franklin to join him,
Jay soon after proceeded to Paris, where he had the pa-
triotism to act upon his commission, and the firmness to
disregard his instructions. On his arrival there, on the
twenty-third of June, he found the aged minister alone;
Adams being yet in Holland, Laurens a prisoner in En-
gland, Jefferson, deterred, as he says, " by the uncommon
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? HAMILTON.
129
vigilance of the enemy's cruisers," remaining in Ame-
rica. * f
The British minister had in the interval employed agents
to ascertain the disposition of the American commission-
ers, as to a waiver of an express recognition of the inde-
pendence of their country. They reached Paris after
Jay's arrival there, and returned convinced that every at-
tempt to inveigle the United States must fail.
These overtures alarmed Vergennes. J He saw that the
capture of Yqrktown had placed England and the United
States in a position which must result in peace. How to
control its terms, was with him the only remaining ques-
tion, wearied as France was with the continued demands
for aid. His efforts to exclude the United States from a
general congress, and to prevent a direct negotiation with
Great Britain, had succeeded. Thus Paris was still the seat
of negotiation. It was important to thwart any attempts
* Jay's Life, vol. 1, p. 170.
t "Such was the state of my family, that I could not leave it, nor could
I expose it to the dangers of the sea, and of capture by the British ships then
covering the ocean. I saw, too, that the labouring oar was really at home,
where much was to be done of the most permanent interest, in new model-
ling our governments, and much to defend our fanes and firesides from the
desolations of an invading enemy, pressing on our country in every point. "--
Jefferson's Works, vol. 1. p. 41.
X "The letter in the 6rst page of the Gazette of this morning," Madison
wrote Randolph, " was written by Mr. Marbois. In an evening of promis-
cuous conversation I suggested to him my opinion that the insidiousness of
the British court, and the good faith of our ally, displayed in the late abor-
tive attempt of the former to seduce the latter, might with advantage be
made known, in some form or other, to the public at large. He said he
would think of the matter, and next day sent me the letter in question, with
a request that I would revise and translate it for the press, the latter of which
was done. I mention this, that you may duly appreciate facts and senti-
ments contained in this publication. " This was suggested by propositions
of England for a separate peace--called by Madison an "insidious step. "--
1 Mad. 131,141. It may be asked, Did England form the alliance against
herself? Was she bound to respect it ? .
17
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? 130
THE LIFE OF
to transfer it elsewhere. With this view a verbal commu-
nication was made by the French minister to the secretary
of foreign affairs, calling upon congress to declare, " that
in case commissioners offered to treat upon this continent,
they should be referred to the ministers of the United
States, who are provided with instructions on this subject
in Europe ; that the court of London should address itself
to these, and that it is impossible that the seat of negotia-
tion should be in America. "*
This suggestion produced the desired result. A reso-
lutionf was reported by Madison, which declared, in case
such overtures should be made, that " congress will not de-
part from the measures which they have heretofore taken
for preventing delay, and for conducting the discussions
in confidence and in concert with his most christian ma-
jesty. "
Madison's report of January had, in the mean time, re-
mained with the committee to which it was referred. It
was not brought forward until August, when a paper was
presented to congress, prepared by Edmund Randolph,
containing facts and observations on the claims not inclu-
ded in the ultimatum of the fifteenth of June, seventeen
hundred and eighty-one.
This report was in conformity with the previous one of
Madison. A motion for revoking the power given to
France was again made. "It was pushed," Madison wrote
Randolph," with the expected earnestness, but was parried,
and will issue, I believe, in an adoption of your report,
with a representation thereupon to the court of France. " J ?
* 3 D. C. 297. t May 31, 1782. --3 S. J. 138.
t Madison Papers, v. 1, p. 159.
? "In my last I informed you that the motion to rescind the control
given to France over the American ministers had been parried, and would
probably end in an adoption of your report. It was parried by a substitute
so expressed as to give a committee sufficient latitude m reporting without
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? HAMILTON.
131
Another conference was had in September with the
French minister; on this occasion, extracts from several
letters addressed to him by the Count De Vergennes, were
read: one of the ninth of April, stating that "their joint
efforts would be crowned with success, if on the one hand
making the greatest exertions to procure the completest
satisfaction, they on the other hand confined themselves
within such bounds of moderation* as would give no um-
brage to any one of the powers at war with Great' Bri-
tain. " Others of the second of May and twenty-eighth
of June were produced, intimating that it was now evi-
dently the object of Great Britain to lessen their exertions
on this continent, to adopt a defensive war, and having
succeeded in one of these objects, to return against the
United States with redoubled efforts. Congress were ex-
horted to declare that no peace but a general one would
be attended to; they were assured that when the negotia-
tions were entered into with sincerity, France would exert
her good offices on all points connected with the prosper-
ity of the United States; that congress were themselves
sensible of the distinction between the conditions of jus-
tice and rigour, and those of convenience and compliance,
which depended on the good or bad situation of affairs;
that though the circumstances of the allies were very
,promising, such events might happen as might make it
advisable to adopt the part of moderation. The necessity
of England being convinced of the impossibility of treat-
ing separately was urged, and they were called on to
proclaim that the United States would not make peace
without the concurrence of their ally, and that if any
implying on the part of congress a design to alter past instructions; the
composition of the committee appointed according well with the object
of the substitute," &c. --Madison to Edmund Randolph. --Madison Papers,
T. 1. 160. --August 20, 1782.
* September 24, 1782.
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? 132 THE LIFE OF
overtures were to be made, the American plenipotentia-
ries were sufficiently empowered to receive jhem. .
This communication was referred to a larger committee.
Their report, after expressing the utmost confidence in
the assurances and good offices of France, declared,* that
"considering the territorial claims of these states as here-
tofore made, their participation of the fisheries, and of the
free navigation of the Mississippi, not only as their indu-
bitable rights* but as essential to their prosperity, they
trust that his majesty's efforts will be successfully employ-
ed to obtain a sufficient provision and security for those
rights. Having avowed, " that any claim of restitution or
compensation for property confiscated, will meet with in-
superable obstacles, not only on account of the sove-
reignty of the individual states," but of the wanton depre-
dations of the enemy, they express a further trust, that
"the circumstances of the allies at the negotiations for
peace will be so prosperous, as to render these expecta-
tions consistent with the spirit and moderation recommended
by his majesty, f
The wishes of the king of England had, during this
period, been consulted by his ministry, and an act was
passed " to enable him to conclude a peace or truce" with
certain "colonies" therein mentioned. On the twenty-
fifth of July, Oswald received a warrant to treat in pursu-
ance of this act. This warrant was submitted to Ver-
gennes, Franklin, and Jay.
Vergennes gave his opinion that it might be acted upon,
"that names signified little, that an acknowledgment, in-
stead of preceding, must, in the natural course of things,
be the effect of the treaty, and that it would not be rea-
* October 3, 1782. --3 S. J. 243.
t This report was from Madison, Duane, Rutledge, Montgomery, and
Carroll.
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? HAMILTON.
133
sonable to expect the effect before the cause. " He urged
an exchange of powers with the British commissioners, on
the ground that an acceptance of them would be a tacit
admittance of it.
Franklin had always intended to secure the inde-
pendence of the United States; but as to the mode, it
has been seen that he would have been satisfied with a
tacit acknowledgment of it. Adhering to this opinion,
he concurred with Vergennes, and sustained this course
on the ground that it was an acquiescence with the
views of that minister, as prescribed by his instruc-
tions. Jay dissented from this opinion; he considered
the instructions of seventeen hundred and seventy-nine,
framed by Gouverneur Morris, as indicating the sentiments
of the nation before its counsels had been influenced by
France; and although he then voted for a tacit recogni-
tion, the position of the country had changed--the Ameri-
can arms had triumphed, and England had resolved on
peace.
These considerations would have been sufficient of them-
selves, but there was another which could not have been
without weight. Whatever policy might have been pre-
viously adopted, the public declaration of Lord Shelburne
left no alternative consistent with the honour of the coun-
try, but an open, explicit, preliminary acknowledgment
of its independence. Jay did not conceal from Franklin
the suspicions which the readiness of Vergennes to waive
this point had produced. The French minister had, on
previous occasions, when he knew that such a requisition
was an insuperable bar to all negotiation on the part
of England, declared that it must be insisted upon. That
with all the advantages in his favour, so practised a
statesman should have abandoned this opinion, if he had
ever seriously entertained it, without some motive, was
not to be supposed. The only adequate motive to be as-
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THE LIFE OF
signed was, a desire to defer this acknowledgment, to
make it an article of treaty, and thus dependent upon all
the contingencies of such a treaty, until, as the Spanish
minister had intimated, the conclusion "of a general
peace. " Spain had claims to which the United States
were unwilling to accede; France had demands upon
Great Britain, to the attainment of which, the support of
Spam was important. The United States were under no
engagements to continue the war for the promotion of the
views of Spain. But the treaty of alliance compelled them
not to cease hostilities until their independence was se-
cured. The British ministry held their places on the
tenure of peace with America; but if that had been
effected, Vergennes well knew that the temper of the Bri-
tish nation would have sustained a war with France or
Spain from motives of policy or resentment. Thus, not
only the question whether to promote the designs of Spain
as to the American territory, or to obtain advantages from
Great Britain, or even a general peace might depend on
deferring the recognition by England of the United States
as a nation. The strong repugnance of the British
monarch to an express acknowledgment might also have
induced a belief, if that should be relinquished by her instru-
mentality, that France might gain an equivalent for this
service. Acting upon a full view of his position, Jay ap-
prised Oswald of his objections to his commission; who, to
remove them, disclosed to him the instructions to Sir Guy
Carleton to admit independence in the first instance. Jay
avowed that he would have no concern in any negotia-
tion "that did not consider his countrymen as independent
people," and drafted a commission to be issued by Great
Britain.
A second discussion arose with the French minister on
the reception of Oswald's powers; Vergennes remained
of his former opinion, and asserted that an acknowledg-
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? HAMILTON.
135
ment previous to a treaty was unnecessary, denied that
it was sufficient for the United States to be treated with
on the ground of equality as other nations were, but
insisted that an explicit acknowledgment of independence
in the treaty was "very necessary," to prevent future
claims. The reply of the British ministry to Oswald pro-
ceeded on the idea of an acknowledgment as an article
of treaty. * This course was admitted by him to have
been adopted in consequence of the intimation of Ver-
gennes that it would be sufficient.
A strong expression of the determination not to permit
the question of independence to be the subject of a treaty,
and thus implying that America was not then independent,
was embodied in a letter from Jay to Oswald, which was
submitted to Franklin, who disapproved it, lest it might
possibly be productive of future embarrassment, and as
involving a departure from their instructions. After weigh-
ing this objection, Franklin having declined to sign this
letter, Jay gave it to Oswald. Vergennes had, meanwhile,
proposed that Oswald should by letter declare that he
treated with the United States as independent; an ex-
pedient which was, of course, rejected. The fixed pur-
pose of France was manifested upon another occasion.
In consequence of an intimation to that effect by the court
of Spain, a conference was held with their envoy at Paris.
In this conference, the claims of Spain having been set
forth, Jay, without entering into the discussion, presented
a copy of his commission, anfl asked if the Spanish envoy's
powers were equally extensive.
He affirmed that they were, but did not produce them.
Vergennes, who was present, remained silent; but Ray-
neval, the secretary of the council, urged that this prelimi-
nary should be dispensed with. f
?
* 8 D. C. 143. ^ray's Life, v. 1, p. 144. t 8 D. C. 201.
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THE LIFE OF
Having ascertained that through the interference of
France, the unsatisfactory powers to Oswald were framed,
and that Rayneval had proceeded secretly to London,
there was enough to awaken the suspicions of any pru-
dent minister. These suspicions were confirmed by the
disclosure to Jay of the contents of the recent despatch
of Marbois, and on the following day he sent a secret
agent to England, to represent the absolute necessity of a
preliminary acknowledgment of independence, of a mu-
tual participation in the fisheries and in the navigation of the
Mississippi being conceded, and that it was the policy of
France to postpone this recognition. This communication
had the intended effect. A commission* to Oswald, "to
negotiate with commissioners vested with equal powers by
and on the part of the United States of America," was
received in Paris late in September.
The points now to be adjusted were the boundaries, the
fisheries, and the claims of the loyalists.
The progress of the negotiation confirmed the suspicions
entertained by Jay as to the policy both of France and
Spain, with respect to the territorial limits of the United
States. The importance of obtaining the alliance and aid
of the Spanish ministry was such a# to have led him to
think, previous to his mission, that a cession might wisely
have been made of the navigation of the Mississippi, as an
inducement to such an alliance. But when Spain had, in
order to promote her own views, entered into the war,
when she refused to recognise the United States as a na-
tion, and failed in her engagements as to aid, every induce-
ment to such a concession ceased; and he dissuaded con-
gress from granting it, on the ground that it would render
a war with Spain unavoidable, and "that he should look on
his subscribing to the one, as fixing the other. "
* Sept. 21, 1782.
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? HAMILTON.
137
In the project of a treaty, in obedience to his instruc-
tions, which he was aware were known to Spain, he of-
fered this cession, but upon his own responsibility annexed
a declaration, "that if its acceptance, together with the pro-
posed alliance, should be postponed to a general peace, the
United States would not be bound by this offer. " Cir-
cumstances occurred subsequently to this, which had a
strong influence on the action of congress. On the cap-
ture of Pensacola, Spain, instead of providing in the capitu-
lation that the British troops should not serve against the
United States, permitted them to reinforce their garrison
at New-York. Similar terms were granted in the surren-
der of the Bahama islands.
These occurrences excited strong indignation in America,
which was increased by the unjustifiable interruption of
the Havana trade,* in consequence of which, American
vessels were detained a long time in the service of Spain, no
compensation for the delay made, and then sent away
without convoy, and many of them captured. But the
event which made most impression was an expedition of a
party of Spaniards and Indians from St. Louis, who seized
a small post on the St. Joseph, occupied by a few English
soldiers, took possession of it with its dependencies, and
also of the river Illinois, in the name of his catholic ma-
jesty, and displayed the standard of Spain as a formal
assertion of her title. This act was decisive of the pur-
poses of that government.
A committee was appointed by congress to revise the
instructions to Jay, (prepared by Madison,) not to insist
upon the free navigation of the Mississippi. Their report
would have exposed the United States to the risk, if ^pain
chose to claim it on the ground of the secret article with
France, of being compelled to conclude a treaty "on her
* 8D. C. 211.
18
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? 138
TIIE LIFE OF
first requisition. " It was amended on the next day* at the
instance of Rutledge, so as to direct him " to forbear making
any overtures or entering into any stipulations in conse-
quence of overtures previously made by him; and he was
authorized to leave Spain, and go into any other part
of Europe, whenever the state of his health might re-
quire it. "
If the American commissioner had any doubts remain-
ing as to the policy of Spain, they were removed by the
disclosure of the contents of an intercepted despatch from
the French ambassador at Madrid to Vergennes. This
document represented the strong aversion of the catholic
court to any American settlements on the Mississippi, as
they would engross the trade of New Orleans and Mexico;
that Spain was determined to make the Indians a barrier
between their possessions; "that she would find the
means, if necessary, to obstruct their progress; and that
France could not afford" Spain a greater proof of "her"
attachment, than in employing " her" influence in the Uni-
ted States to divert their views from the navigation of the
Mississippi. '! '
In the conference which has been mentioned between
D'Aranda and Jay on the twenty-ninth of June, the former
expatiated on the rights of Spain to a large tract of coun-
try east of the Mississippi, as conquests from England, re-
ferring to the post recently taken on the St Joseph, and
remarked as to such part of that region as she had not con-
quered, that it was the territory of free and independent
nations of Indians, whose lands could not be claimed by
the United States. J She then proposed a longitudinal
line as an arbitrary boundary, which would have dissev-
ered from the United States a large portion of her west-
ern territory- "The extravagance of this line" was indi-
? Aug. 1,1782. t Life of Jay, vol. 1, p. 139. X 8 D. C. 150.
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? HAMILTON.
13>>
cated by Franklin and Jay to Vergennes, but he, as before,
was reserved. The secretary Rayneval took up the discus-
sion, urged Jay again to treat without any exchange of
powers with D'Aranda, and subsequently submitted to
him a memoir which defended at length the claims of
Spain, and proposed to the United States the admission
of another arbitrary limit.
This proposition implied that Great Britain was entitled
to all the country north of the Ohio, and left in question
the rights of the United States to the extensive western
region above the thirty-first degree of latitude. These sug-
gestions were considered as part of that policy which had
instructed* De Grasse "to withdraw his fleet when the
enemy were at our feet, and a month's delay would have
reduced either New-York or Charleston;" and which
would have postponed the recognition of independence to
the conclusion of a general peace.
The desire of France to confine the limits of the United
States, was again evinced about the time of the return of
Oswald's full commission. Upon an intimation by D'Aran-
da of a wish to commence the negotiation, Jay expressed
his readiness when their powers should be exchanged.
D'Aranda inquired whether Jay had not been apprised
of his having been authorized by the prime minister of
Spain. He admitted it, but required the exchange of their
commissions. This w&s objected to on the ground that
Spain had not acknowledged our independence. Ver-
gennes urged a treaty with Spain in the same manner as
with France--that Spain did not deny the independence--
and proposed that a conference should be held without
saying a word about it, stating that an acknowledgment
of it would be the natural effect of the proposed treaty.
Jay replied, that, being independent, "both the terms of his
* 3D. C. 355.
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THE LIFE OF
commission and the dignity of America forbade his treat-
ing on any other than an equal footing. "
On the same occasion, Rayneval urged the adoption of
the conciliatory line he had proposed, and the advantage
of placing the Indians on each side of it under the protec-
tion of the respective sovereigns. Jay answered, that as
far as these demands affected the Indians, it was a question
between them and the United States, and remarked upon
the recency of these territorial claims. Rayneval in reply
observed, "that the Spanish prime minister had not un-
derstood the subject, and imputed his former ideas of the
United States extending to the Mississippi to his ignorance
of that matter. " A reply that left it not difficult to con-
jecture by whom these recent claims had been suggested.
That Spain should have sought these advantages, might
have been anticipated from the policy of that nation.
How France could have sustained the proposed mutilation
according to an arbitrary line, involving a principle by
which it might have been extended much further east, it is
difficult to conceive, when the grounds of the American
pretensions are understood. By the treaty of Paris, all the
region claimed by the United States had been ceded to the
sovereign of Great Britain. This, by charter, she had
granted, and defined as extending to the Mississippi. Thus
it was held previous to the revolution, and thus under the
same limits it (by the revolution) devolved upon those who
had acquired the sovereignty of this country.
France had acknowledged the independence of the Uni-
ted States; she had by treaty admitted their territorial
claims; she had by treaty guarantied all the possessions
which then belonged to them, to take effect at the instant
of a war between France and Great Britain; which war,
preceding that between Spain and England, precluded all
pretensions on the part of Spain by right of conquest.
Immediately after the commission was received by Os-
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? HAMILTON.
141
wald, the commissioners entered upon the negotiation,
with an express agreement on each part, that it should not
be disclosed to France. It commenced on the first of
October, and on the eighth of that month, articles, of
which the draft was prepared by Jay, were mutually
signed.
After an express preliminary acknowledgment of the
independence of the United States, their boundaries were
defined as prescribed in the original ultimatum of seven-
teen hundred and seventy-nine. The right of fishing and
of curing fish at the accustomed places, as urged by Gou-
verneur Morris, the author of this ultimatum, but then
rejected by congress, was granted. The navigation of the
Mississippi was declared to be forever free and open to
both nations, and the citizens and subjects and ships of
each nation were to enjoy the same protection and privi-
leges in each other's ports and countries, respecting com-
merce, duties, and charges, as were enjoyed by native
subjects, saving to the chartered trading companies of
Great Britain their exclusive rights.
The decision of the British cabinet upon these articles
was not received until the twenty-third of October, when
it was stated that objections arose as to the extent of the
boundaries and the absence of any provision for the tories,
to confer upon which, a person was deputed from Lon-
don.
Three days after, on the twenty-sixth* of October,
Adams arrived at Paris, and co-operated in support of the
terms which Jay had been the principal instrument in ob-
taining. It has been studiously laboured to give to Adams
the chief merit in this transaction; but it is only necessa-
ry to advert to the state of the negotiation when he arrived
at Paris, to decide to whom it belongs.
* Adams to Livingston, 6 D. C. 436.
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THE LIFE OF
On resuming the negotiation, an effort was made to con
tract the limits of the United States, to bring the bounda-
ry to the Ohio, and to settle the loyalists in the vicinity of
the Illinois.
The court of St. James insisted upon retaining all the
territories comprehended within the province of Quebec,
by the acts of parliament respecting it. They contended
that Nova Scotia should extend to the Kennebec, and
claimed all the lands in the western country and on the
Mississippi not expressly included in our charters and go-
vernments, and also all not previously granted by the
crown. But the limits originally proposed were adhered
to, and, with some concessions to the east and north, were
acknowledged.
The points chiefly contested were the restitution, com-
pensation, and amnesty to the adherents of Great Britain,
and a limitation of the fisheries.
The former of these was most urged. It will be re-
corded to the honour of England, that it was the first in-
sisted upon and the last relinquished, and relinquished not
of choice, but because the British government were satis-
fied that congress did not possess the power to make or to
fulfil the necessary stipulations. A substitute was inserted
recommending the restitution of the confiscated estates.
No further confiscations nor prosecutions were to be per-
mitted, and all existing prosecutions were to be discon-
tinued. An express stipulation was also made, that no
legal impediment should be interposed to the full recovery,
in sterling money, by the creditors of either side, of all
bona fide debts previously contracted. All prisoners
were to be discharged; the American possessions were to
be evacuated without the destruction or deportation of
negroes or other American property; and conquests sub-
sequent to the execution of these articles were to be le-
stored without compensation. A separate and secret
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? HAMILTON. 143
article was added, defining the boundary between West
Florida and the United States, in case Great Britain should
recover, or be put in possession of it at the conclusion of
the war. The questions as to the fisheries were much de-
bated, and were satisfactorily adjusted, after a demand of
compensation for injuries being proposed by Franklin and
abandoned.
The policy of France with respect to these particulars,
also produced in the minds of the commissioners much
dissatisfaction. The details of the discussion as to the
fisheries are not preserved with sufficient minuteness to en-
able a very accurate judgment to be formed of the several
propositions made. Acting upon the instructions of the
fifteenth of June, seventeen hundred and eighty-one,
Franklin made no mention of this great interest until some
time after the arrival of Jay.
His demand of this right, which congress declared was
"no less indispensable in its exercise" than "indisputable
in its principles,"* was made to the British negotiator early
in July. It appears that this important claim, then made
the first time, created not a little surprise in the breast of
the British commissioner.
It had been declared by Lord Chatham that the " exclu-
sive right" to the fisheries "was an object worthy of being
contested by the extremities of war. " The reluctance of
England to the participation of the Americans in a pur-
suit which, as a nursery of seamen, would enable them to
contest the supremacy of the ocean, may be supposed to
have created obstacles on the part of that maritime power.
Former events had shown to France the importance the
English crown attached to it; and hence, had a disposition
existed to interpose an obstacle to a treaty, none other
would have been more readily seized upon. What shape
3 s. J. 158.
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THE LIFE OF
this question assumed in the progressive negotiations be-
tween Great Britain and France, is not known; whether
that of an equal division of the fisheries, with a total ex-
clusion of the people of the United States, or a limitation
of them merely to the coast fishery; but the evidence is >>
complete, that France, if she did not oppose, at least looked
coldly on the claims of the United States.
In a conversation held between Jay and Rayneval, (after
Great Britain had resolved to grant them,) to an inquiry by
the latter," what we demanded as to the fisheries," on being
informed " that we insisted on enjoying a rjght in common
to them with Great Britain, he intimated that our views
should not extend further than a coast fishery, and insinua-
ted that pains had lately been taken in the eastern states to
excite their apprehensions and increase their demands on
that head. We told him that such a right was essential
to us, and that our people would not be content to make
peace without it; and Franklin explained very fully their
great importance to the eastern states in particular. He
softened his manner--observed that it was natural for
France to wish better to us than to England; but as the
fisheries were a great nursery for seamen, we might sup-
pose that England would be disinclined to admit others to
share in it, and that for his part he wished there might be
as few obstacles to a peace as possible. He reminded us
also, that Oswald's new commission had been issued poste-
rior to his arrival at London. "
The only remaining question that excites attention upon
which the course of France is to be investigated, is as to
the proposed stipulations with respect to the loyalists. In
the despatch from Adams,* the representations made by
the French envoy to congress, and the opinion of Ver-
gennes in favour of clemency and restitution, are imputed
* 6 D. C. 443-445.
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? HAMILTON.
145
to a knowledge that the American commissioners were in-
structed not to make any express engagements in their
behalf, and that congress had not a constitutional authority
to make them; and it is suggested that the pertinacity of
England in protecting her adherents, was "stimulated by
French emissaries. " Congress had indeed declared that it
was their "particular wish" that the return " of these fu-
gitives and exiles from their country" should "be most
strenuously opposed,"* and that any stipulations for their
return were dishonourable to the government of the states
and obnoxious to the people at large. But that France
should have interposed her influence in their behalf, against
a policy so impolitic and harsh, may be ascribed to other
motives--to the feelings of a nation which regarded loyal-
ty as a virtue--which supposed that clemency was the
proper attribute of a crown, and would not, at least on the
part of her ally, be a theme of reproach.
Vergennes, upon an annunciation being made to
him of the signature of the treaty, addressed a sharp re-
buke to Franklin for having concluded the preliminary
articles without any communication to him, " although the
instructions from congress prescribe that nothing should
be done without the participation of the king. " Franklin
mildly answered, that nothing had been agreed in the
preliminaries contrary to the interest of France, " and that
no peace was to take place between us and England till
France concluded hers. " He disclaimed any intentional
disrespect to the king, and asked to be excused "this single
indiscretion. "f
In a subsequent letter to the American government, af-
ter stating that Vergennes had been satisfied on this point,
he observed, in reference to a possible censure by con-
gress, "that their nomination of five persons to this ser-
? 3 S. J. 159. Report of Lovell, Carroll, and Madison, t 4 D. C. 57.
19
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