Benjamin Franklin Papers

British Counterproposal to the Second Draft Treaty: Selected Articles, [19 November 1782]

British Counterproposal to the Second Draft Treaty: Selected Articles

Copy:6 Massachusetts Historical Society

When Henry Strachey arrived in London on November 10, the British Cabinet was summoned to review the second draft treaty.7 Shelburne urged the members to come to a “provisional agreement” with America. The King reluctantly agreed to accept independence, rationalizing that “knavery seems to be so much the striking feature of [America’s] Inhabitants that it may not in the end be an evil that they become Aliens to this Kingdom.”8

The Cabinet first met on November 11 and continued deliberations on November 14 and 15, drafting and unanimously approving this counterproposal, which the Americans could either “take or leave.” Townshend delivered the proposal to the King on the evening of November 19. That night George III approved it out of “necessity not conviction.”9

The British counterproposal retained almost verbatim several sections of the second draft treaty; other sections were substantially revised. Many of the paragraphs were rearranged, and the whole was divided into numbered articles. That order and numbering system was retained in the final version of the Preliminary Articles, published below under November 30. We describe here the overall proposal and print below only those articles that the British substantially revised from the second draft treaty and that would be revised again for the final version of the Preliminary Articles, so that readers may examine the evolution of the commissioners’ language.

The first three paragraphs of the counterproposal were substantially unchanged, and in fact were carried over from the first draft treaty as agreed to by Jay, Franklin, and Oswald in early October.1 The third paragraph, naming the states, constituted Article 1, as it had in the first draft treaty.

Article 2, setting the boundaries of the United States, copied the “lakes and rivers line” option given to the British by the American commissioners along with the second draft treaty. Though the British hoped that Strachey would achieve a more favorable boundary, this article was retained verbatim in the Preliminary Articles.

Article 7 declared a cessation of hostilities and was almost identical to Article 2 of the first draft treaty, whose language was carried over to the second draft.2

Article 8, about free navigation of the Mississippi River, was adopted from the second draft treaty with the addition of a final phrase of clarification.3

The Separate Article was changed from the second draft treaty in two ways. The counterproposal’s version ended with the phrase “due East to the River Apalachicola,” thereby deleting the reference to the northern border of West Florida as extending to the junction of that river with the Flint (Flynt) River. This change, which left this portion of the border implied, was retained in the Preliminary Articles. The counterproposal also changed the word “Conclusion” (referring to the war) to “End.” The Preliminary Articles retained the word “Conclusion.”

We publish below the texts of Articles 3 through 6, which addressed the most contentious issues of the negotiations: fisheries, debts owed to British creditors, and the treatment of Loyalists. Townshend told the King that Articles 4, 5, and 6 were the ones that Oswald must insist on; the others were subject to negotiation.4 It was Strachey, not Oswald, who explained the British positions on these issues when he presented this counterproposal to the American commissioners on November 25. His remarks are published below, under that date.

[November 19, 1782]5

Article 3.6

The Citizens of The Said United States Shall have the Liberty of taking Fish of every Kind on all the Banks of Newfoundland, and also in the Gulph of St. Laurence; and also to dry and cure their Fish on the Shores of the Isle of Sables and on the Shores of any of the unsettled Bays, Harbours, and Creeks of the Magdalene Islands, in the Gulph of St Laurence, So long as Such Bays, Harbours and Creeks Shall continue and remain unsettled; on Condition that the Citizens of the Said United States do not exercise the Fishery, but at the Distance of three Leagues from all the Coasts, belonging to Great Britain, as well those of the Continent as those of the Islands Situated in the Gulph of St Laurence. And as to what relates to the Fishery on the Coasts of the Island of Cape Breton out of the Said Gulph, the Citizens of the Said United States, Shall not be permitted to exercise the Said Fishery, but at the Distance of fifteen Leagues from the Coasts of the Island of Cape Breton.

Article 4.

It is agreed that the British Creditors Shall meet with no lawful Impediment to the Recovery of the full Value in Sterling Money of Such bona fide Debts as were contracted by any Persons who are Citizens of the Said United States before the Year 1775.

Article 5.7

It is agreed that Restitution Shall be made of all Estates, Rights and Properties in America, which have been confiscated during the War.

Article 6.

There Shall be a full and entire Amnesty of all Acts and Offences, which have been or may be Supposed to have been committed on either Side by reason of the War, and in the Course thereof; and no one shall hereafter Suffer in Life or Person, or be deprived of his Property, for the Part he may have taken therein. All Persons, in Confinement on that Account, Shall immediately on the Ratification of the Treaty in America, be set at Liberty: all Prosecutions which may be depending in Consequence of any of the said Offences, Shall cease, and no fresh Prosecutions Shall at any time hereafter be commenced thereupon.

[Note numbering follows the Franklin Papers source.]

6In JA’s hand. He introduced the copy with the following note: “Monday, Nov. 25. 1782. The Three Commissioners Adams, Franklin and Jay, met at Mr Oswalds Lodgings at the Hotel de Muscovie, and after Some Conferences, Mr Oswald delivered them the following Articles, as fresh Proposals of the British Ministry, Sent by Mr Stratchey, vizt.” The full text is in Wharton, Diplomatic Correspondence, VI, 74–7.

7For Strachey’s arrival see Fortescue, Correspondence of George Third, VI, 153–4. The second draft treaty, [Nov. 4–7], is above.

8Fortescue, Correspondence of George Third, VI, 153, 154.

9Fortescue, Correspondence of George Third, VI, 155–7; Harlow, Second British Empire, I, 293–4; Richard B. Morris, The Peacemakers: the Great Powers and American Independence (New York, Evanston, and London, 1965), pp. 367–8.

1The one exception was the removal of two words at the end of the first paragraph of Article 1. The British changed “the following are, and shall remain to be their Boundaries” to “the following are and shall be their Boundaries”. This change was retained in the final version of the Preliminary Articles.

2There were two differences. The first clause of the article was dropped, so that the sentence began, “There Shall be a firm and perpetual Peace …” Secondly, the promise that the King would withdraw all his armies from American soil “forthwith” was changed to “with all convenient Speed.” The American commissioners later agreed to these changes.

3The British added that navigation would be free and open “to the Subjects of Great Britain and Citizens of the United States.” The American commissioners agreed to this change.

4Fortescue, Correspondence of George Third, VI, 156–7.

5The date on which George III approved this proposal.

6By substituting “Liberty” for “Right,” eliminating Nova Scotia as a location for drying fish, and denying inshore fishing, the Cabinet drastically altered the Americans’ article. Shelburne told Oswald that this was to guard against “the Bickerings of Fishermen,” citing his adherence to the principle that BF had advocated at the outset of negotiations, “the necessity of laying the Foundation of permanent Peace”: Shelburne to Oswald, Nov. 23 (Giunta, Emerging Nation, I, 682). Strachey also emphasized this motive in his Nov. 25 remarks to the commissioners (below).

7In his Nov. 23 letter to Oswald cited above, Shelburne claimed that the articles relating to the Loyalists (Articles 5 and 6) were not motivated by interest. “’Tis a higher Principle—This Country is not reduc’d to Terms of Humiliation, and certainly will not suffer them from America.” Shelburne knew, however, that when Parliament reconvened, the approval of the treaty and the survival of his government depended on the Americans agreeing to articles protecting the interests of the Loyalists. Shelburne went on to admit as much to Oswald: “If Ministers through Timidity or Indolence could be induc’d to give way; I am persuaded the Nation would rise to do itself Justice, & to recover it’s wounded Honor.” Strachey told the American commissioners on Nov. 25 that Article 5 was the “the grand Point upon which a final Settlement depends.”

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