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John Jay’s Draft of the American Peace Commissioners to the Secretary for Foreign Affairs (Robert R. Livingston), [before 18 July 1783]

John Jay’s Draft of the American Peace Commissioners to the
Secretary for Foreign Affairs (Robert R. Livingston)

[Passy, before 18 July 1783]1

Sir,

We have had the honor of receiving by Capt. Barney your two letters of the 21 & 25 Ap. last,2 with the Papers referred to in them.

We are happy to find that the provisional Articles have been approved and ratified by Congress, and we regret that the manner, in which that business was conducted, does not coincide with your Ideas of Propriety.

Your Doubts on that Head appear to have arisen from the following Circumstances.

  • 1. That we entertained and were influenced by Distrusts and Suspicions, which do not seem to you to have been altogether well founded.3
  • 2. That we signed the Articles, without previously communicating them to this Court.4
  • 3. That we consented to a separate article, which you consider, as not being very important in itself, and as offensive to Spain.5
  • 4. That we kept, & still keep, that Article a secret.6

With respect to the first, your Doubts appear to us some what singular. In our Negociation with the British Commissioner, it was essential to insist on, and, if possible, to obtain his Consent to four important Concessions, viz,

1. That Britain should treat with us as being what we were, vizt. an independent People.

The French Minister thought this Demand Premature, and that it ought to arise from, and not precede the Treaty.7

2. That Britain should agree to the Extent of Boundary we claimed.

The french Minister thought the Demand extravagant in itself, and as militating against certain Views of Spain, which he was disposed to favour.8

3. That Britain should admit our Right in common to the Fishery.

The french Minister thought this Demand too extensive.

4. That Britain should not insist on our reinstating the Tories.9

The french Minister argued, that they ought to be reinstated.10

Was it unnatural for us, Sir, to conclude from these Facts, that the french Minister was opposed to our succeding on these four great Points, in the Extent we wished? To us it appeared evident, that his Plan of a Treaty for us, was far from being such an one, as America wd. have preferred; and, as we disapproved of his model, we thought it imprudent to give him an opportunity of moulding our Treaty by it.

Whether the minister was influenced by what he really thought would be best for France, is a Question which, however easy, or however difficult, to decide, is not very important to the Point under Consideration. Whatever his motives may have been, certain it is, that they were such as militated against our System; and as, in private Life, it is deemed imprudent to admit opponents to full Confidence, so, in public affairs, the like Caution seems equally proper.

But, admitting the force of this Reasoning, why when the Articles were compleated, did we not communicate them to the french Minister, before we proceeded to sign them? for the following Reasons, Sir!

As Lord Shelburne had Excited Expectations of his being able to put a speedy Termination to the War, it became necessary for him, either to realize those Expectations, or to quit his Place. The Parliament having met, while his Negociations with us were pending, he found it expedient, to adjourn it for a short Term, in Hopes of then meeting it with all the Advantage, which he might naturally expect, from a favorable Issue of the Negociation. Hence it was his Interest to draw it to a close before that adjournment expired; and to obtain that End, both he and his Commissioner prevailed upon themselves to yield certain Points, on which they would probably, have been otherwise more tenacious. nay we have, and then had, good Reason to believe that the Latitude allowed by the British Cabinet for the Exercise of Discretion, was exceeded on that occasion.11

You need not be reminded, Sir; that the King of G. Britain had pledged himself in Mr. Oswald’s Commission to confirm and ratify, not what Mr. Oswald should verbally agree to, but what he should formally sign his name and affix his Seal to.12

Had we communicated the Articles, when ready for signing to the french Minister, he doubtless would have complimented us on the Terms of them; but at the same time he would have insisted on our postponing the Signature of them, until the Articles, then preparing between France, Spain & Britain, should also be ready for signing. He having often intimated to us, that we shd. all sign at the same Time and Place.

This would have exposed us to a disagreable Dilemma.

Had we agreed to postpone signing the Articles, the British Cabinet, might, and probably would, have taken advantage of it. They might have insisted that as the Articles were Res infecta,13 and as they had not authorized Mr. Oswald to accede to certain matters inserted in them, they did not conceive themselves bound in honor or Justice to adopt Mr. Oswald opinions, or permit him to sign and seal, as their Commissioner, a Number of Articles, which they did not approve. The whole Business would thereby have been set a float again; and the minister of France would have had an opportunity, at least, of opposing the objections of the British Cabinet, and of advising us to recede from Demands, which in his opinion, were immoderate, and some of which were too inconsistant with the Views and Claims of Spain to meet with his Concurrence.

If, on the other hand, we had refused to postpone the signing, and supposing that no other ill consequence wd. have resulted, yet, certainly, such refusal would have been more offensive to the French Minister, than our doing it without his Knowledge, & consequently without his opposition. Our withholding from him the Knowledge of these Articles, until after they were signed, was no Breach of our Treaty with France, and, therefore, could not afford her any Ground of Complaint against the United States. It was indeed a Departure from the Line of Conduct prescribed by our Instructions; but we apprehend that Congress marked out that Line for their own Sake, and not for the Sake of France. They directed us to ask and be directed by the advice of the French minister because they supposed it would be fore the Interest of America to receive and be governed by it. It was a Favor she asked from France, and not a Favor that she promised to, and we withheld from, France. Congress, therefore, alone have a Right to complain of that Departure. As to the Confidence which ought to subsist between Allies, we have only to remark, that as the French minister did not think proper to consult us about his Articles, our giving him as little Trouble about ours, was perfectly equal and reciprocal.14

LbkC, in the hand of Jean L’Air de Lamotte, MHi: Adams, reel 103, 219–24 (EJ: 11663). Endorsed: “ . . . Commencement of the Letter to Mr. Livingston as 1st drawn up by Mr. Jay, But concluded to be left out.” LbkC, DLC: Franklin, 8: 207–11 (EJ: 10341).

1This Dft, following BF’s criticism, below, was replaced by the final version dated 18 July.

2The references are to RRL’s dispatches dated 25 Mar. and 21 Apr. 1783, both above.

3For an expression of JJ’s suspicions and for the reasons behind many of his decisions about which RRL complained, see JJ to the Secretary for Foreign Affairs, 17 Nov. 1782, above.

4See “Vergennes’s Response to News of the Preliminaries” (editorial note), on pp. 281–82.

6The separate article was the first of the four circumstances discussed in the final text of the commissioners’ letter to RRL.

7See “John Jay Proposes Altering Richard Oswald’s Commission” (editorial note), on pp. 108–11.

9See “The Preliminary Articles Are Signed” (editorial note) on pp. 264–67.

11On Shelburne’s political difficulties and forced resignation, see JJ to RRL, 19 July 1783; and “Signing the Definitive Peace Treaty” (editorial note) on pp. 462–67.

12Oswald’s revised commission, dated 21 Sept. 1782, had stated that “every Regulation, Provision, matter or thing which shall have been agreed upon between you . . . and such Commissioners . . . shall be fully and distinctly set forth in writing, and authenticated by your hand and Seal on one side; and by the hands and Seals of such Commissioners . . . on the other.” Every “Regulation, Provision, matter or thing” so “agreed to, and concluded by” Oswald would be “ratified and confirmed” by the king “in the fullest manner and extent”. PJA description begins Robert J. Taylor, Gregg L. Lint, et al., eds., Papers of John Adams (16 vols. to date; Cambridge, Mass., 1977–) description ends , 13: 484–85.

13“A subject not concluded.”

14See BF’s Observations on Jay’s Draft Letter, [c. 18 July]; the substantially altered final text of this letter, dated 18 July; and JJ to RRL, 19 July 1783, all below.

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