Barclay’s Independent Negotiation: Three Documents
(I) AD: Historical Society of Pennsylvania; two copies with comments, and a sheet of answers: Staffordshire County Record Office; (II) copy and (III) AD: Norfolk Record Office4
In mid-February, 1775, after a conference with Lord Hyde, Barclay said that he was “now fully possess’d of what would do in this Business.” He thereupon drew up a list of points that he thought both sides had conceded, plus some proposals of his own.5 According to Franklin’s account this plan (below, under February 16) was the first and only instance where his friend took the initiative in offering terms. But in fact Barclay had for some time been exploring on his own, to see whether Franklin’s “Hints” could be brought into line with what the government might accept. The three documents that follow are the fragmentary record of his exploration. He later claimed that the first one, his emendation of the “Hints,” was the groundwork of the whole subsequent negotiation.6
As early as December 12, when he forwarded to Lord Hyde the “Hints” that he had received from Franklin, Barclay apparently said in a covering letter that he thought they demanded too much. Hyde agreed, and suggested that modification was in order.7 At some point thereafter Barclay set his hand to revision, of which we believe that his February plan was only the final stage. What the earlier stages were cannot be established with confidence, and cannot be dated at all. But internal evidence suggests to us that he first revised the “Hints” after he objected in December to their severity (I), that he then received written comments on the revision (II), and that in response he revised a second time (III). If this chronology is correct, his February plan was no isolated effort, but the culminating one. His earlier labors he never revealed to Franklin, according to the latter’s account; and his reason can only be conjectured. If he anticipated finding terms that would interest Whitehall, and then persuading his friend to accept them, he was hoping against hope.
The first document may seem to repeat the gist of Franklin’s “Hints,” but in fact cuts the heart out of them. Barclay adds a clause to what had been Article 6 and becomes Article 7, and renumbers and sometimes reorders subsequent articles; these changes are trivial. What is significant is his omitting four of Franklin’s demands: that tea duties already collected be turned over to the provincial treasuries, that erection of a royal fortress require consent of the provincial legislature, that statutes defining Admiralty jurisdiction in America be re-enacted there, and that Parliament renounce its right to legislate on internal colonial affairs. Barclay may have thought of the first three demands as peripheral; could he have thought the same of the fourth, which was at the center of the whole controversy? In any case his doctored version of the “Hints” went to Lord Hyde, who added manuscript comments; that copy was then recopied in Dartmouth’s office, with slight changes in numbering, and answers were compiled.8 We incorporate the comments and answers in our annotation of the document. Whether Barclay ever saw them is not known; he certainly did not discuss them, according to Franklin’s account, with his fellow negotiators.
The second document, “Remarks,” is an enigma. It is a copy in Barclay’s hand of responses to the articles by number; most were addressed to his version but some to Franklin’s, and a few to articles that are unidentifiable except by guesswork. The author obviously assumed that this numerical shorthand would be comprehensible. He wrote informally, at moments in the first person; and unless we misunderstand him what he said was startling. He was willing to make major concessions, perhaps even repeal of the Coercive Acts: the first eleven articles, with exceptions noted below, appear to have been to Barclay’s articles; if the twelfth was also, it conceded repeal. The other concessions are of a piece: to renounce the right of taxation and substitute requisitions, to accept most of Franklin’s other points, and apparently-for here the “Remarks” are ambiguously worded-to emasculate the Declaratory Act by limiting Parliament to the regulation of trade. These terms are tantamount to British surrender, and nothing like them has come to light in the course of the negotiations. They show that Barclay’s efforts met at some point, from some one who at least purported to speak with authority, a most encouraging reception.9
The final document is, we believe, Barclay’s response to the “Remarks.” It contains nothing that is demonstrably at odds with them, and the fact that it provides for repeal of the Coercive Acts suggests that the “Remarks” did so as well. The concession that they make about the Declaratory Act is echoed in Barclay’s Article 14, which reasserts, though in the area of taxation alone, what had been dropped in amending the “Hints,” Franklin’s demand that Parliament abandon the right to legislate for the colonies. Any curtailment of that right was politically impossible, for the followers of Rockingham as well as of North would have balked. If Barclay did not recognize this, others must have enlightened him. His final plan, which he showed to Franklin on February 16, did not mention the Declaratory Act, and made even repeal of the Coercive Acts contingent on an elaborate set of petitions. The banker worked long and hard on his revisions, if our tissue of conjectures is valid, only to end with a plan that held no promise. Try as he might to be flexible, he could not negotiate between opposing principles.
[After December 12, 1774, and before February 16, 1775]
Hints for a Conversation upon the Subject of Terms that may probably produce a durable Union between Great Britain and her Colonies.
|1st.||The Tea distroyed to be paid for.10|
|2d.||The Tea Duty Act to be repealed.1|
|3d.||The Acts of Navigation to be all reenacted in the several Colonies.2|
|4th.||A Naval Officer appointed by the Crown to reside in each Colony to see that these Acts are observed.3|
|5th:||All the Acts restraining Manufactures in the Colonies to be reconsider’d.4|
|6th.||All Dutys arising on the Acts for regulating Trade with the Colonies, to be for the public Use of the respective Colonies, and paid into their Treasuries.5|
|7th.||The Collectors and Custom house Officers to be appointed by each Governor and not sent from England: The present Officers to be continued only during each Governor’s pleasure.6|
|8th.||In Consideration of the Americans maintaining their own peace Establishment, and of the Monopoly Britain is to have of their Commerce, no Requisition to be made from them in time of Peace.7|
|9th:||In time of War, on Requisition made by the King with consent of Parliament, every Colony shall raise money by some such Rule or Proportion as the following Vizt. If Britain on Account of the War pays as high as 3s. in the pound to its Land Tax, then the Colonies to add to their last general provincial Tax a Sum equal to [suppose ¼] thereoff; and if Britain on the same Account pays 4s. in the pound, then the Colonies to add to their said Tax a Sum equal to [suppose ½] thereoff which additional Tax is to be granted to the King and to be employed in raising and paying Men for Land or sea service furnishing Provisions Transports or such other purposes as the King shall require and direct; and tho no Colony may contribute less, each may add as much by Voluntary Grant as they shall think proper.8|
|10th.||No Troops to enter and quarter in any Colony, but with the Consent of its Legislature.9|
|11th:||Castle William to be restored to the province of the Massachusets Bay.1|
|12th:||The late Massachusets and Quebec Acts to be repeal’d and a free Government granted to Canada.2|
|13th:||The Extention of the Act of Henry 8th. concerning Treason in the Colonies to be formally disclaimed by Parliament.3|
|14th.||The American Admiralty Courts to be reduced to the same powers they have in England.4|
|15th.||All Judges in the Kings Colony Governments to be appointed during Good behaviour, the Colonies fixing ample and equally durable salaries,5 Or if it is thought best the King should still continue to appoint during Pleasure, then the Colony Assemblies to grant Salaries during their pleasures as has always heretofore been the practice.6|
|16th.||The Governors also to be supported by Voluntary Grants of the Assemblys as heretofore.7|
|3d.||This will never be granted: therefore the Colonies must enter into Compact, that the Acts of Navigation, which have been already passed in Great Britain and such other Acts as may hereafter pass for regulating Trade only, shall be binding on them and their heirs &c. And if the 6th. Article is obtained I see no Objection to No. 3 being yeilded.8|
|5th:||Some little Relaxation may perhaps be obtained, such as exporting, or perhaps only removing Hatts from one Colony to the other1 and that probably not to be obtained as it will be consider’d that it must affect British Manufactures. Qr. [Query] if ought to [be], insisted on.|
|6th.||If granted, will remove many difficulties about regulations of Trade, interfering with Ideas of Taxation.|
|7th.||Will not be easily obtained, as curtailing the power of the Crown and reducing the Minister’s Levy and consequently his Influence in Parliament.2|
|8th.||Qr. [Query] as the Dignity of Great Britain must be preserved; Whether if No: 2. 11. 12. 13. 14 could be obtained, it may not be prudent for the Colonies to consent to raise annually on Requisition made by the King by consent of Parliament, a certain proportion (however small) of their last provincial Tax equal to [suppose thereoff] when Britain pays 3s. in the pound to its land Tax. This Concession will so much please the greatest part of the Nation, as to enduce them to yeild more substantial Benefits, in particular No. 6.3|
|10th:||Granted [Deleted: Not likely to be obtained, except quartering.4]|
|11th:||Granted [Deleted: or to be paid for by Great Britain.]|
|14th.||Acts relative to Admiraltry Courts to be reenacted in America. Will never be granted and indeed unnecessary if a Compact should be enter’d into.6|
|17.||The Declaritory Act to be repealed, or explained so, as to be understood not to extend to Taxation but for Regulation of Trade which is to be paid into the Treasuries of the Colonies.7 By the above Plan those other Grievances hung up in the petition to the King will be (I conceive) removed and Harmony establish’d on a permanent foundation.|
Notation: Notes D Barclay
Plan for / Conciliation8
4. The AD of (I) is in Barclay’s hand, and was enclosed in his letter to Pemberton, March 18, 1775; the copies and answers, in an unknown hand and discussed below, are in the Dartmouth Papers, D(W) 1778/11/1007 and 1124. (II) and (III), also in Barclay’s hand, are in the Gurney Papers, RQG 546. All the documents are undated.
5. Below, pp. 585–6.
6. See above, p. 366 n. 4.
7. Hyde to Barclay, Dec. 13, 1774: Richard Hingston Fox, Dr. John Fothergill and His Friends ... (London, 1919), p. 395. Barclay’s letter is lost, but Hyde emphasized his friend’s comment in forwarding the letter and the “Hints” to Dartmouth on Dec. 15: Bodleian MSS, Clar. dep. c. 347, p. 122. On the 22nd Barclay reported to BF Hyde’s opinion but not his own: below, p. 564. This suggests that the merchant may have been less than candid about his role. Some remarks in the letter to Pemberton, cited above, may be taken to imply that Barclay collaborated with Fothergill in the revisions, but we have no other evidence that he did.
8. Both copies divide Article 15 into two parts, and 16 becomes 17; otherwise, with one exception noted below, both follow Barclay’s text verbatim. One, referred to hereafter as Copy A, contains the comments in Hyde’s hand and a few that seem to be in Dartmouth’s. The other, Copy B, is probably all in one hand, and incorporates these comments except as noted. The answers, unlike the copies, follow Barclay’s numbering throughout.
9. The “Remarks” refer to the petition from the Congress and therefore must have been written after it arrived on, we believe, Dec. 17; see above, p. 345 n. We dare not conjecture the author’s identity. The obvious candidate is Hyde, because as far as we know he was the only one close to the ministry whom Barclay was consulting; although he may have consulted others, it is hard to imagine any one else who would have been in a position to say which articles were and were not granted. Yet if this was Hyde speaking, what he said was at odds with all we know of his views. They might perhaps have been stretched into consonance with Barclay’s February plan, but not with the “Remarks.”
10. Answer: “Agreed.”
1. Hyde: “or reconsidered.” Answer: “The Colonies having engaged to make the provisions hereafter to be agreed upon, there can be no doubt that this would be consented to.”
2. Hyde: “or a Compact to bind the Colonies with regard to Acts of Navigation.” Answer: “No.”
3. Hyde: “Not by the Proprietor or by any Assembly.” Answer: “Agreed.”
4. Hyde: “Not with a view to repeal, but to accomodate.” Answer: “Agreed.”
5. Answer: “Agreed.”
6. The second clause was Barclay’s addition to BF’s original Article 6. Hyde: “Not tenaciously supported.” Answer: “No.”
7. Hyde: “or only in a very small proportion raised by themselves.” Answer: “Let the Colonies establish a permanent fund for the support of the peace establishment of each, upon estimate, after the precedents of the Island of Jamaica. They may then rest satisfied that no requisition will ever be made in time of peace, but upon extraordinary occasions, and for extraordinary Services, which will be provided for by annual and occasional supply bills, as is done in Jamaica.” After fifty years of pressure from Whitehall and the governor Jamaica became, in 1728, the only British colony in which the assembly provided a permanent revenue to support the executive: Leonard W. Labaree, Royal Government in America ... (London and New Haven, 1930), pp. 275–83.
8. Brackets in the original. In Copy A is a lightly deleted note, omitted in Copy B and probably Dartmouth’s. It is much abbreviated and partly illegible, but seems to agree in principle to the ratio between colonial and British taxes; details are to be considered. Answer: “In time of War let requisitions be made as heretofore, in mutual confidence that America will not furnish less, nor Great Britain expect more, towards the general Service than shall be justly proportioned to the Abilities and circumstances of each Colony.”
9. Hyde: “for the Defence of that Colony, or at the Requisition of the Colonies Legislature.” Answer: “Utterly inadmissable.”
1. Hyde: “[as] before it was last taken.” Answer: “Castle William to be put under the Command of the Governor with a Garrison paid by the Province.”
2. Hyde: “or a declaration that the present Government does not extend beyond certain limits.” Answer: “As to the Quebec Act, this Article rejected, the Colonies with whom the present Contest is have nothing to do with it. As to the Massachusets Acts, whenever the people of Massachusets Bay shall shew any disadvantages or inconveniences from the late Acts, they shall be attentively considered.”
This answer contrasts sharply with that to BF’s equivalent Article 11 (below, under Feb. 4), where a possible concession is suggested on the Quebec Act and none whatever on the Coercive Acts.
3. Answer: “If the Colonies shall make such Laws respecting of Treasons in America as shall give full Security for an impartial Trial of that offence, and be approved here, the necessity of putting in force the Act of Henry 8th, if it does extend, will be superceded.”
4. Here, for a reason we do not venture to guess, both copies add in slightly altered phrasing the clause that Barclay deleted from BF’s version, “and the Acts relative to them to be reenacted in America,” after which Copy A appends “no.” Answer: “Admiralty Courts are of ancient Institution and are refered to in all the Laws respecting the Plantation Trade. If the establishment of Exchequer Courts in lieu of them be more agreeable to the people of America, there does not appear, upon the general view, to be any ground of objection.”
5. Dartmouth(?): “removable by Address of Council and Assembly, or King in Council or Parliament.”
6. Answer: “Agreed to the first proposition.”
7. Hyde: “or the Governors to be paid by the King out of English Money, not from an American Chest.” Answer: “The Governors Salaries will be included in the general Estimate.”
8. I.e., dropped as a colonial demand.
9. This point perhaps accounts for Barclay’s note on the same article as it reappeared in his plan below, under Feb. 16.
1. Restrictions upon the marketing of hats were an old grievance: above, XII, 185; XIII, 367.
2. At this point the numbering of Barclay’s articles diverges from that of BF’s above, under Dec. 4; the reference here is to the former. “Levy” may well be “levee,” used as a metaphor for patronage.
3. Brackets in the original. We assume, though with hesitance, that this response to Article 8 refers to peacetime requisitions, and that the next answer refers to those in wartime.
4. Agreement here, if it is meant to apply to Barclay’s Article 10 above, was squarely at odds with the opinion in Dartmouth’s office that that article was “utterly inadmissable.”
5. As mentioned in the headnote this answer, if it is to Barclay’s Article 12, concedes repeal of the Coercive and Quebec Acts.
6. Here confusion becomes worse confounded: the reference is not to Barclay’s article above, but to the portion that he deleted of BF’s Article 16.
7. This comment seems to be on BF’s final article; Barclay had entirely avoided the issue.
8. “No. 7” follows in the MS. We are inclined to think, although we cannot be certain, that this is an addition, not by Barclay, and has no significance. Many but not all of his MSS are numbered, sometimes clearly not by him, in a sequence that may have been chronologically incorrect in the first place.