CHAPTER XIII.
Negotiations for Peace. — Debates on the Subject in the British Parliament. — Change of Ministry. — Mr. Oswald sent to Paris to consult Dr. Franklin on the Mode of Negotiating. — Grenville's Commission; disapproved by Franklin. — Mr. Fox's Views of Independence. — Lord Shelburne's Administration. — Mr. Fitzherbert. — Mr. Oswald commissioned to negotiate the American Treaty. — Essential Articles of the Treaty proposed by Franklin. — Advisable Articles. — Mr. Jay disapproves Mr. Oswald's Commission. — An Alteration required and obtained. — Progress of the Treaty. — Independence, Boundaries, Fisheries. — Attempts of the British Ministry to secure the Indemnification of the Loyalists. — Mr. Adams joins his Colleagues and resists the British Claims. — Franklin proposes an Article for Indemnification the Americans for their Losses during the War. — British Claims relinquished. — Treaty signed. — Ratified by Congress.
EARLY in the year 1782, the subject of peace began to occupy the attention of the British Parliament. The capture of Lord Cornwallis's army at Yorktown, the inability of the ministers to supply the place of these troops for another campaign, the fact that Holland had recently joined the belligerents against England, the enormous expenses of the war; all these things bad contributed to open the eyes of the people, and to raise a general clamor for peace. The tone of the King's speech to parliament, which convened soon after the intelligence of Cornwallis's defeat reached England, was somewhat more subdued than it had been before; yet such was the force of habit in wording the royal speeches, that even now, when the Americans had nobly sustained themselves as an independent nation for more than five years, captured two British armies, and taken away the last hope from their enemies of conquering them, the King could not refrain from talking of his rebellious and deluded subjects; although he did not, as on former occasions, boast of his prowess, and of the ample means subjugation, which he had at command.
It was soon discovered in Parliament, that the public sentiment had communicated itself to that body, and that the overwhelming majority, which had sustained the ministers through the war, was greatly reduced, if not annihilated. The matter was brought to a trial by a motion of General Conway, that an address should be presented to his Majesty, praying that the war in America might cease, and that measures should be taken for restoring tranquillity and a reconciliation. The motion gave rise to a debate, which was animated on both sides, and it was finally lost by a majority of one only in favor of the ministers, and for continuing the war.
This vote was the signal for a dissolution of the ministry. Lord North resigned, and there was a total change of ministry and measures. The new administration was formed in March. The Marquis of Rockingham was prime minister; the Earl of Shelburne and Mr. Fox, the two principal secretaries of state. This ministry came into power, as Mr. Fox more than once declared in Parliament, with the express understanding, that the fundamental principle of their measures was to be "the granting of unequivocal and unconditional independence to America." For some time they seemed to act on this principle. The two secretaries corresponded directly with Dr. Franklin on the subject of peace, and they sent Mr. Richard Oswald over to Paris early in April, with authority to consult him on the mode of beginning and pursuing a negotiation. Mr. Thomas Grenville was likewise sent to confer with Count de Vergennes in reference to the preliminaries for a general peace between all the powers at war. Nothing more could be done till Parliament should pass an act enabling the King to enter into a formal negotiation.
As to the mode of conducting the negotiations, Dr. Franklin said he thought it would be best for the British negotiators to appear under separate commissions, one for the American treaty, and another for those of the European powers, since the topics to be discussed were entirely distinct; and, as this mode would have greater simplicity, the object might be the sooner and more easily attained. The British ministry approved and adopted this suggestion, and their envoys were accordingly furnished with separate commissions.
Both Mr. Grenville and Mr. Oswald, at their several interviews, assured Count de Vergennes and Dr. Franklin, that the point of independence had been conceded, and that it was to be granted in the first instance, before the treaty was begun. It was agreed between the British and French cabinets, that the negotiations should take place at Paris. Mr. Grenville remained there. Mr. Oswald went back to London, but returned in a few days. In the mean time Mr. Grenville received a commission, which he understood to authorize him to treat with France and America; but there was not a word in it about any other power than France. When this defect was pointed out to Mr. Grenville, be said, that, though his commission was silent in regard to America, yet his instructions gave him ample powers. Dr. Franklin was not satisfied with this explanation, and be said that the commission must be put in a proper form for treating with the United States, or no treaty could be held. Finding him firm in this decision, Mr. Grenville despatched an express to London with the commission, which came back so altered as to authorize him to treat "with France, or any other Prince or State. "This form was no more satisfactory than the other. On perusing it, Dr. Franklin told Mr. Grenville, that " he did not think it could be fairly supposed, that his court meant, by the general words any other State, to include a people whom they did not allow to be a State;" and he refused to consider Mr. Grenville as empowered to act in the American treaty under this commission.
After what had been said and repeated, by Mr. Oswald and Mr. Grenville, of the readiness of the British government to enter into a treaty on reasonable terms, this kind of shuffling displeased both Dr. Franklin and Count de Vergennes. They began to suspect it to be an artifice to gain time, and that some recent successes in the West Indies had encouraged the court of St. James to prosecute the war, or, at least, to put off the treaty, with the hope of securing more favorable terms in consequence of these successes. There were, perhaps, some grounds for these suspicions, though the main difficulty arose, as soon appeared, from another cause. News arrived of the death of the Marquis of Rockingham, the dissolution of the British cabinet, and the formation of a new one. This happened in July, the Rockingham administration having existed only two months and a half. The Earl of Shelburne was raised to the station of prime minister; Mr. Fox retired, and the principal secretaries of State were Earl Grantham and Mr. Townshend.
Mr. Fox declared in Parliament, that he had left the cabinet wholly on the ground of American independence; that be had supposed this was to be granted in the first instance, and unconditionally; that he felt himself pledged to support this measure; that he found other counsels prevailing in the cabinet and that, consequently, his only course was to retire. It was known, also, that Lord Shelburne, though friendly to the colonies and opposed to the war, had often declared himself against independence; but, the new Administration having come into power on the basis of peace, it was supposed that he had changed his mind in this particular His friends in Parliament insisted that he had done so, notwithstanding Mr. Fox's explanation implying the contrary. It is moreover to be observed, that there were political and personal differences, of long standing, between Lord Shelburne and Mr. Fox, which prevented their acting together in harmony, and that they had not agreed with respect to the negotiations, which bad been begun.
The new ministry being formed, however, under Lord Shelburne, he managed the peace in his own way; and it turned out, that Mr. Fox was right in saying, that the recognition of independence in the first instance was not a measure, which this minister bad sought to promote, although the commissioners in Paris bad been officially authorized to make this declaration to Dr. Franklin. After the Marquis of Rockingham's death, there was evidently an intention in the cabinet to establish the peace on a different basis, and to grant independence for an equivalent, to be rendered by the United States, either in commercial privileges or a cession of territory.
In this state of affairs, Mr. Grenville, who bad been appointed by the influence of Mr. Fox, was recalled from Paris, and his place was supplied by Mr. Fitzherbert, properly commissioned to negotiate with France, Spain, and Holland. The American treaty was left in the hands of Mr. Oswald. As yet, neither Mr. Adams nor Mr. Jay, who were associated with Dr. Franklin in the commission for peace, had arrived in Paris, the former being employed in Holland, and the latter in Spain; but Mr. Jay joined him soon afterwards. Mr. Laurens, the other commissioner, was in England, having recently been discharged from his imprisonment in the Tower, in exchange for Lord Cornwallis. He took no part in the treaty till just at its close.
Mr. Oswald received his instructions from Lord Shelburne, and was told that his commission would speedily follow. He had held many conversations with Dr. Franklin at various times during three months, in which all the fundamental articles of a treaty had been more or less canvassed. He now renewed these conversations with the direct aim of proceeding, in the negotiation. At length Dr. Franklin read to him a paper, containing what he conceived to be the elements of a treaty, adding at the same time, that be could do nothing definitively without the concurrence of his colleagues. His suggestions comprised two classes of articles, the first of which he represented as necessary, and the second as advisable for England to offer, if she desired a complete reconciliation and a lasting peace. The substance of them is here presented in the language in which they were reported by Mr. Oswald to Lord Shelburne.
"The articles, necessary to be granted, were, First, independence, full and complete in every sense, to the Thirteen States; and all troops to be withdrawn from there. Secondly, a settlement of the boundaries of their colonies and the loyal colonies. Thirdly, a confinement of the boundaries of Canada; at least to what they were before the last act of Parliament, in 1774, if not to a still more contracted state, on au, ancient footing. Fourthly, a freedom of fishing or the Banks of Newfoundland and elsewhere, as well for fish as whales.
"The advisable articles, or such as he would, as a friend, recommend to be offered by England, were, First, to indemnify many people, who had been ruined by towns burnt and destroyed. The whole might not exceed five or six hundred thousand pounds. I was struck at this. However, the Doctor said, though it was a large sum, yet it would not be ill bestowed, as it would conciliate the resentment of a multitude of poor sufferers, who could have no other remedy, and who, without some relief, would keep up a spirit of revenge and animosity for a long time to come against Great Britain; whereas a voluntary offer of such reparation would diffuse a universal calm and conciliation over the whole country. Secondly, some kind of acknowledgment, in some public act of Parliament or otherwise, of our error in distressing those countries so much as we had done. A few words of that kind, the Doctor said, would do more good than people could imagine. Thirdly, colony ships and trade to be received, and have the same privileges in Britain and Ireland, as British ships and trade; British and Irish ships in the colonies to be in like manner on the same footing with their own ships Fourthly, giving up every part of Canada."
These terms were sent over to the ministry, and Mr. Oswald was authorized to treat, by assuming the articles, here mentioned as necessary, for the basis of his negotiation. It hence appears, that, at the outset, Dr. Franklin not only insisted on the fisheries as necessary to be granted, but the British ministers decided to yield them, although they afterwards struggled hard to have this decision reversed.
Dr. Franklin was extremely desirous to procure the accession of Canada; he said, there could be no solid and permanent peace without it; that it would cost the British government more to keep it, than it was worth; it would be a source of future difficulties with the United States, and some day or other it must be long to them; and it was for the interest of both parties, that it should be ceded in the treaty of peace. Yet he did not think proper to urge such a cession as a necessary condition of peace, especially since Congress had forborne to instruct the commissioners on this subject, and since there was no claim on France, by the treaty of alliance, to sustain such a demand, as the pledge in that treaty was only to insure the independence of the old Thirteen Colonies, and Canada was not one of thwe. Mr. Oswald, in his conversations with Dr. Franklin, gave it as his opinion, that Canada should be given up to the United States, and said, that, when he mentioned it to the ministers, though they spoke cautiously, they did not express themselves as decidedly opposed to the measure. It was not pressed, however, by the American commissioners, and it would seem not to have been much dwelt upon in the subsequent progress of the negotiation.
At this stage of the business, Dr. Franklin was taken ill, and was confined for several weeks to his house. The negotiation was chiefly carried on by Mr. Oswald and Mr. Jay, though Dr. Franklin was consulted when occasion required it. Mr. Oswald at length produced his commission. It was first perused by Mr. Jay, who was so little pleased with it, that he refused to proceed with the treaty unless it should be altered. As it stood, Mr. Oswald was authorized to conclude a treaty "with commissioners named, or to be named, by the colonies or plantations in America," or any assembly, body, or description of men. Nothing was said of the United States as an independent power, nor could it be inferred, that their independence was to be recognised in a formal manner. Mr. Oswald appealed to his instructions on this bead, and showed one of the articles, by which independence was to be granted in the treaty. Mr. Jay still insisted that this was not enough; that independence must be acknowledged in the first instance, and that the commission must be worded accordingly.
The form of Mr. Oswald's commission was faulty in two respects; first, the American commissioners did not represent colonies, but an independent nation; secondly, Mr. Oswald was empowered to negotiate with assemblies, or individuals of any description, which, to say the least, was unusual, and not respectful to the United States. Dr. Franklin was consulted, and he agreed with Mr. Jay, that the commission was objectionable in its form, but he had some doubts whether it was best to endanger the treaty by insisting too much on forms, especially as it was evident, that independence was to be granted, as well as all the other principal demands of the United States. In the present condition of affairs in England, there was a prospect of another change of ministry; and, if this should take place, it was extremely doubtful whether peace could be obtained on any reasonable terms, and whether the war would not be renewed. Mr. Jay saw the matter in a different light; he looked upon the form as a thing of more importance; and he labored the point for some time with Mr. Oswald, and with so much pertinacity as to gain a partial success.
As to a previous acknowledgment of independence, Mr. Jay said it ought to be declared by an act of Parliament. But Parliament was not now in session, and would not convene for some months. He next suggested, that the King should do it by proclamation. Mr. Oswald replied, that the Enabling, Act, which empowered the King to make peace, did not authorize him to issue such a proclamation; and, when Parliament should meet, they might destroy its effect, and perhaps throw every thing into confusion and defeat the treaty. When he complained to Dr. Franklin of Mr. Jay's inflexibility, and of its tendency to overthrow all that had been done, and take away all hope of continuing the negotiation, Franklin answered, "Mr. Jay is a lawyer, and may think of things that do not occur to those who are not lawyers." Mr. Jay finally gave up this point, and said, that, "if Dr. Franklin would consent, he was willing, in place of an express and previous acknowledgment of independence, to accept of a constructive denomination of character, to be introduced in the preamble of the treaty, by only describing their constituents as the Thirteen United States of America." Dr. Franklin agreed to this proposal, and the more readily, as Mr. Adams had sonic time before written to him from Holland as follows. "In a former letter I hinted, that I thought an express acknowledgment of independence might now be insisted on; but I did not mean, that we should insist upon such an article in the treaty. If they make a treaty of peace with the United States of America, this is acknowledgment enough for me."
The commission was accordingly sent back to London, and altered apparently without hesitation or objection. Instead of the original form, it was so worded, that Mr. Oswald was empowered to treat "with any commissioners or persons, vested with equal powers by and on, the part of the Thirteen United States of America." After all, the previous acknowledgment was not obtained. Independence made the first article of the treaty. But this was a small matter in itself; a thing of form and not of substance.
These preliminary skirmishes occupied three months from the time the discussions first commenced between Dr. Franklin and Mr. Oswald. The negotiators were now ready to enter upon the solid part of their work. Independence, the boundaries, and the fisheries, were the three great points to be arranged. The first was settled at once, in the manner already described. The boundary question was more complex; it led to long discussions, to the examining of maps and ancient documents, and to such ingenious arguments and counter-arguments as diplomatists know how to use. It was finally adjusted to the satisfaction of the parties.
The right to catch fish, in the ocean, at such a distance from the coast as not to interfere with the jurisdiction over any territory, is given by nature to all mankind, and is recognised by the laws of nations, although it is sometimes encroached upon by the usurpation of maritime powers. This right had been exercised by the Americans along their own coast, from the first settlement of the country, in common with the British. As to the Banks of Newfoundland, and other fishing grounds in that quarter, they had shared in the wars for maintaining, and extending the liberty of fishing there, and in this view they possessed the same title to it as the inhabitants of Great Britain. They had not forfeited it by the Revolution, any more than they bad forfeited the right to navigate their own bays and rivers. In short, the case was so plain, that no difficulty was made about it at the beginning of the negotiation; for we have seen, that it was included in the necessary articles first proposed by Dr. Franklin. No objection was then made to it; and, in fact, Mr. Oswald was instructed to admit this article.
When, however, the negotiation seemed nearly at a close, the various propositions in the treaty having been carried back and forth by messengers between Paris and London, an effort was unexpectedly made by the British ministry to extort better terms. They, now revived the question of the boundaries; but it was their great object to obtain compensation for the loyalists, or Tories whose property had been confiscated, and many of whom had been banished from the country. If this could not be done, it was their next object to retain the fisheries as an equivalent. Mr. Strachey went over to Paris, and he and Mr. Fitzherbert united their forces with Mr. Oswald to push these points with all their might. At this time Mr. Adams had joined his colleagues, having arrived in Paris near the end of October, a month before the treaty was signed. Coming fresh to the conflict, he exerted himself on every point with his usual ardor and energy; and the British claim to the fisheries, in particular, was resisted by him with great strength of argument and a determined spirit.
In regard to the loyalists, none of the American commissioners ever gave the least hope, that any thing could be done in their favor. Dr. Franklin discarded the idea, most pointedly, in his first conversations with Mr. Oswald. The commissioners had no power to act in the case; Congress had none. The property of the loyalists had been confiscated by the States, and the, remedy, if any, must be sought from the States. An article in the treaty, to this effect, would ,not be binding; it would not be regarded. Besides, neither justice nor humanity required, that the Americans should compensate these people. They had been the principal cause of the war, and instrumental in promoting and aggravating some of its worst horrors; they had taken the lead in burning towns, and plundering and distressing the inhabitants; they had deserted their country's cause, and sacrificed every thing to their friendship for their country's foes; and, if they were to be indemnified by anybody, it must be by their friends. Such were the sentiments of Dr. Franklin, which be maintained to the last, and in which he was firmly supported by his colleagues.
They would not listen to any proposal in the shape of an indemnification; and they said, that, if such an article were insisted on, it must be accompanied by another, which would destroy its effect, and probably turn the advantage to the other side. An account should be prepared in America of all the damages done by the loyalists, and an account of their losses should be exhibited, and examined by commissioners mutually chosen for the purpose. These two accounts should be set against each other. If a balance were found in favor of the loyalists, it should be paid by the Americans; if the balance were against them, it should be paid to the United States by the British government.
This suggestion was not relished by the British envoys; and they finally declared, that, unless the loyalists were indemnified and the fisheries contracted with, in the limits prescribed by them, the treaty must go back again to London for the consideration of the ministry. Dr. Franklin then produced a new article, which he desired might be sent with it; the substance of which was, that his Britannic Majesty should recommend to Parliament to make compensation to the Americans for all the goods taken from them by
the British army during the war, for the tobacco, rice, indigo, and negroes that bad been plundered, for the vessels and cargoes seized before the declaration of war against the United States, and for all the towns, villages, and farms, that bad been burned and destroyed by his troops.
The tone of the British commissioners was softened by this formidable proposition. Nothing more was said about sending the treaty to London. It appeared, indeed, that they bad a discretionary power to sign the treaty, even if they should fail to gain these two points of compensation to the loyalists and the new claim to the fisheries. The ministry had always intended to give them up, if they could do no better. An article was inserted, however, by which Congress were to recommend an indemnification of the loyalists to the States; but it was declared, at the same time, that there was not the least probability that the States would take any notice of this recommendation. By another article it was agreed, that there should be no legal impediment, on either side, to the collection of debts contracted before the war. These two articles, even in this limited shape, were regarded as important by the ministry, because they would appease the clamors of the British creditors, and of the loyalists, and thus disarm the opposition, in some degree, of the weapons with which it was foreseen the treaty, would be assailed on the meeting of Parliament.
It may be added, also, that the commercial article, which Dr. Franklin proposed in his first sketch, and which Mr. Jay afterwards assisted him to mature, was not introduced. The treaty was merely a treaty of peace. Commercial regulations were left for a future arrangement. The whole business was at length concluded, and the original demands of the American commissioners, in every essential point, were allowed and confirmed. The treaty was signed at Paris by both parties in due form, on the 30th of November, 1782. It was approved and ratified by Congress, and received with joy by the people; and the commissioners bad the satisfaction, which has rarely fallen to the lot of negotiators, of finding their work applauded by the unanimous voice of a whole nation.×
