Robert R. Livingston to the American Peace Commissioners
Philadelphia 21st. April 1783.
Upon the receipt of the provisional Articles & a subsequent account brôt by a Vessel dispatched by Count d’Estaing,1 I wrote the Letter No. 1. to Sr. Guy Carleton, & No. 2. to Admiral Digby: to which I recieved the Answers No. 3. & 4. You will find them cold & distant— Those they wrote to the Minister of France, in answer to similar Communications made by him, were still more so, and contain the same illiberal doubts, which are mentioned in mine, expressed in much stronger terms. When they recieved an authentic account of the Treaty, they sent a Copy of it, no part being omitted, to Congress thro’ the General. When the Proclamation for the Cessation of Hostilities was recieved at New York, it was sent to me by an officer with the Letters No. 5. & 6., to which I returned the Answers No. 7. & 8.2
After this, two great questions were agitated in Congress—1st. Whether they should proceed to the immediate ratification of the provisional Articles—and 2dly. whether they should release the Prisoners. Some maintained, with respect to the first of these points, that they knew not in what light to consider the provisional Articles, whether as Preliminaries, or a definitive Treaty— That the Preamble said they were to constitute the Treaty while at the same time they were only to be inserted in it— Those Terms they considered as contradictory, and they wished to have explanations from you on this head, to know what the operation of a ratification would be; and they inferred from your Silence, that none was necessary. They observed that no time was set for the Evacuation of New York— That the Ratification would in some measure compel them to release their Prisoners, & thus strengthen their Hands, when it was possible that the definitive Treaty might not take effect between Great Britain and France; and that the Ratification and the Restoration of Prisoners, if it left us nothing more to do, was in some sort to desert our Allies. To this it was answered, that the provisional Articles were only to be recieved as Preliminary—that from the very Nature of them they could not be definitive— that the Ratification would not alter the Nature of them, but confirm them as they stood—that they were confessedly very advantageous to Us— That the neglecting any such acceptation of them, as was necessary on our part, would give the Enemy a pretence for violating the Stipulations they contained— that the principal points between France & Great Britain being settled, we had no reason to apprehend a failure of a definitive Treaty— that it was important to shew, that we were determined to adhere in every particular to the Engagements you had made. These Arguments prevailed, & the Resolution No. 9. passed, directing the Ratification which I inclose.3 It is probable that the definitive Treaty will be signed before this can reach you, otherwise it would be extremely desirable that some Ambiguities in the provisional Articles should be cleared up, and other Objects, which have been touched upon at different times in my public Letters, attended to. The sixth Article is not so precisely expressed as to point out to what time, the word future refers—whether to the Signature of the provisional Articles— whether to the Act which gave it the force of a Treaty, or to the definitive Treaty, tho’ I should suppose the second to be the intention from the opposition between the word now, and the time of the ratification in America.
The 7th: Article leaves the time for the evacuation of New York upon so loose a footing, that I fear our troublesome Guests will long continue to be such unless a day is fixed for their departure in the definitive Treaty. You can easily concieve the impatience that the distressed Inhabitants of New York feel at every moments delay, & the fears & jealousies that prevail among them, lest it should be meant to retain these Posts as Pledges for the performance of the Stipulations in favor of the Tories.— By the debates in Parliament on the third of March it is evident that they had then no Orders to evacuate.
You will observe that the Ratification does not extend to the seperate Article— The Treaty between Spain & Great Britain renders it unnecessary— And Congress not caring to express any Sentiment upon that Subject.4 I refer you to my Letters to Dr. Franklin & Mr. Jay upon the Subject of a free Trade with the West Indies, and the Logwood Trade, which are important objects here, and I hope will be attended to in your definitive Treaty.5 It were to be wished that the Ambiguity with respect to the time of the cessation of Hostilities upon this Coast was cleared up, and the construction we put upon it adopted, to wit, that by as far as the Canaries was intended the Latitude of the Canaries, which construction can be supported by a variety of Arguments, and is extremely important to Us, as a Number of our Vessels have been taken since the third of March.
I have the honor to be, Gentlemen, / with great Esteem & Respect, / your most obed. humble Servt.
Robt. R. Livingston
Dupl (Adams Papers); internal address: “Honble. John Adams, Benjn. Franklin / John Jay & Henry Laurens Esqrs.”; endorsed: “Mr Livingstone to the Ministers / for Peace. 21. April. 1783.”
2. The eight enclosed letters, which are not with this document in the Adams Papers, included the following: Livingston to Carleton, 24 March and 11 April; Carleton to Livingston, 26 March and 6 April; Livingston to Digby, 24 March and 12 April; Digby to Livingston, 27 March and 6 April. In their initial replies, both Carleton and Digby told Livingston that despite his assurances that the cessation of hostilities had been signed, they would wait until receiving official word from London before taking steps to disarm (Wharton, Dipl. Corr. Amer. Rev. description begins The Revolutionary Diplomatic Correspondence of the United States, ed. Francis Wharton, Washington, 1889; 6 vols. description ends , 6:336, 337, 346, 348, 362, 363, 367–368, 369–370).
3. Livingston presumably means that he is enclosing both Congress’ unanimous resolution of 15 April “that the said articles be ratified, and that a ratification in due form be sent to our Ministers” (JCC description begins Journals of the Continental Congress, 1774–1789, ed. Worthington Chauncey Ford, Gaillard Hunt, John C. Fitzpatrick, Roscoe R. Hill, and others, Washington, 1904–1937; 34 vols. description ends , 24:242) and the text of the ratified treaty as incorporated into the instrument of ratification exchanged by the commissioners and David Hartley in August, but see note 4.
4. The instrument of ratification is signed by Elias Boudinot, president of Congress, and Robert R. Livingston, secretary for foreign affairs, and attested by Charles Thomson, secretary of Congress. This ratified text of the treaty does not include the separate article, which, as Livingston notes here, was not ratified. In the Journals, however, Congress’ 15 April resolution setting out “the form of the ratification” contains the full text of the original treaty, including the separate article. Assuming that the Journals’ text is correct and there is no exception in the earlier resolution approving ratification, it seems likely that Congress consented to the ratification of the whole treaty, including the separate article. Since Livingston’s statement regarding the nonratification of the article is the only contemporary reference to the article’s omission, it seems evident that sometime after Congress had voted and in the course of preparing the instrument of ratification for signature, it was decided not to include the separate article (Miller, Treaties description begins Treaties and Other International Acts of the United States of America, ed. Hunter Miller, Washington, 1931–1948; 8 vols. description ends , 2:104–105; JCC description begins Journals of the Continental Congress, 1774–1789, ed. Worthington Chauncey Ford, Gaillard Hunt, John C. Fitzpatrick, Roscoe R. Hill, and others, Washington, 1904–1937; 34 vols. description ends , 24:243–251). Note that in their 18 July reply to this letter and Livingston’s earlier one of 25 March, the peace commissioners vigorously defended the inclusion of the separate article, arguing at length that they had kept it secret so as not to damage peace negotiations in which Britain was then engaged with France and Spain (Wharton, Dipl. Corr. Amer. Rev. description begins The Revolutionary Diplomatic Correspondence of the United States, ed. Francis Wharton, Washington, 1889; 6 vols. description ends , 6:566–570).
5. In letters to Benjamin Franklin on 5 Sept. and John Jay on 12 Sept. 1782, Livingston urged that during treaty negotiations they make it a high priority to protect the right of U.S. merchants to trade in the West Indies, arguing that losing the trade would damage the American economy and ultimately the economies of England and France (same, 5:696–698, 720–724).