Draft Peace Treaty Agreed to by the American Peace Commissioners and Richard Oswald, 4 November 1782
Draft Peace Treaty Agreed to by the American Peace Commissioners and Richard Oswald
[4 November 1782]1
Articles agreed upon by and between Richard Oswald Esquire the Commissioner of His Britannic Majesty, for treating of Peace with the Commissioners of the United States of America, on behalf of His said Majesty, on the one part. And Benjamin Franklin, John Jay and John Adams,2 three of the Commissioners of the said States for treating of Peace with the Commissioner of His said Majesty, on their behalf, on the other part. To be inserted in, and to constitute the Treaty of Peace, proposed to be concluded between the Crown of Great Britain and the said United States. But which Treaty is not to be concluded untill His Britannic-Majesty shall have agreed to the terms of a Peace between France and Britain, proposed or accepted of, by His most Christian Majesty, and shall be ready to conclude with him, such Treaty accordingly; it being the duty and Intention of the United States not to desert their Ally, but faithfully, and in all things, to abide by and fulfill their Engagements with His most Christian Majesty.
Whereas reciprocal advantages and mutual Convenience are found by experience to form the only permanent foundation of Peace and Friendship, between States, It is agreed to form the Articles of the proposed Treaty on such principles of liberal equality and reciprocity as that partial advantages, (those seeds of discord) being excluded, such a beneficial and satisfactory Intercourse between the two Countries may be established as to promise and Secure to both, perpetual Peace and Harmony.
His Britannic Majesty acknowledges the said United States Viz New Hampshire, Masachusetts Bay, Rhode Island and Providence plantations, Connecticut, New York, New Jersey, Pensylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia—to be free, Sovereign and Independent States. That He treats with them as such; and for himself, his Heirs and Successors relinquishes all Claims to the Government Propriety and Territorial Rights of the Same, and every part thereof— And that all disputes which might arise in future on the subject of the Boundaries of the said United States may be prevented, It is hereby agreed and declared that the following are and shall remain to be their Boundaries. Viz—3
From the Northwest Angle of Nova Scotia being that Angle which is formed by a Line drawn due North from the Source of St Croix River to the High Lands which divide the Rivers which empty themselves into the River St Laurence from those which fall into the Atlantic Ocean, and along the said High Lands, to the Northwestern head of Connecticut River, thence down along the midle of that River to the Forty fifth Degree of North Latitude,4 following the said Latitude untill it strikes the River Missisippi: Thence by a Line to be drawn along the midle of said River Missisippi—untill it shall intersect the Northernmost part of the Thirty first Degree of Latitude North of the Equator. South, by a Line to be drawn due East from the Termination of the Line last mentioned in the Latitude of Thirty one Degrees, to the midle of the River Apalachicola or Catahouchi, thence along the midle thereof to its junction with the Flint River, thence Strait to the head of St Marys River, and thence down along the midle of St Marys River to the Atlantic Ocean. East by a Line from the Mouth of said St Marys River to the mouth of the River St Croix in the Bay of Fundy, and by a Line drawn through the midle of said River to its source, and from its source directly North to the aforesaid High Lands which divide the Rivers which fall into the Atlantic Ocean from those which empty themselves into the River St Laurence, Comprehending all Islands within twenty Leagues of any part of the shores of the United States, and lying between Lines to be drawn due East from the points where the aforesaid Boundaries of St Croix River and St Marys River shall respectively touch the Bay of Fundy and the Atlantic Ocean, Excepting always Such Islands as now are or heretofore have belonged to the Colony of Nova Scotia or have been within the Limits thereof.5
Upon a farther Consideration of the just Limits and Boundaries of the Province of West Florida, it is agreed that its Northern Boundary shall extend from the Said Thirty first Degree of Latitude to a Line to be drawn due East from the place where the River Yasous falls into the River Missisippi, and along the Said Line due East to the River Apalachicola6
It is agreed that all such Loyalists or Refugees as well as all such British Merchants or other Subjects as may be resident in any of the United States at the time of the Evacuation thereof by the Arms and Garrisons of His Britannic Majesty shall be allowed Six Months thereafter to remove to any part of the World And also at their election to dispose of within the said Term, or to carry with them, their Goods and Effects. And it is understood that the said States shall extend such farther favour to the said Merchants and such Amnesty and Clemency to the said Refugees as their respective Circumstances and the Dictates of Justice and humanity may render fit just and reasonable;7 and particularly that Amnesty & Indemnity be granted to all such of the said Refugees, as may be unaffected by Acts Judgements or Prosecutions actually pass’d or commenced a month previous to such Evacuation.8
That the Subjects of his Britannic Majesty and the People of the said United States shall continue to enjoy unmolested, the Right to take Fish of every kind on all the Banks of Newfoundland; also in the Gulph of St. Laurence, and all other places where the Inhabitants of both Countries used at any time heretofore to fish; and also to dry & cure their Fish on the Shores of the Isle of Sables, Cape Sables, and the Shores of any of the unsettled Bays, Harbours or Creeks of Nova Scotia, and of the Magdalene Islands. And his Britannic Majesty, and the said United States will extend equal Priviledges & Hospitality to each others Fishermen as to their own.9
Whereas certain of the United States excited thereto by the unnecessary Destruction of private Property have confiscated all Debts due from their Citizens to British Subjects; and also in certain Instances Lands belonging to the latter.
And whereas it is just that private Contracts made between Individuals of the two Countries before the War, should be faithfully executed; and as the Confiscation of the said Lands may have a Latitude not justifiable by the Law of Nations—It is agreed that British Creditors shall notwithstanding meet with no lawfull Impediment to recovering the full Value, or Sterling amount of such bona fide Debts as were contracted before the year 1775. And also that Congress will recommend to the said States so to correct (if necessary,) their said Acts respecting the Confiscation of Lands in America belonging to real British Subjects, as to render the said Acts consistent with perfect Justice & Equity.10 As to the Cession made of certain Lands in Georgia, by a number of Indians there, on the first June 1773, for the purpose of paying the Debts due from them to a number of Traders—The American Commissioners say, that the State of Georgia is alone competent to consider & decide on the same: for that it being a matter of internal Police, with which neither Congress nor their Commissioners are authorised to interfere, it must of necessity be referred to the Discretion, & Justice of that State, who without doubt will be disposed to do, what may be just & reasonable on the Subject.
Similar Reasons & Considerations constrain the Commissioners to give the like answer to the Case of Mr. Penn’s Family.11
From, & immediately after the Conclusion of the proposed Treaty, there shall be a firm & perpetual Peace between his Majesty & the said States; & between the Subjects of the one, & the Citizens of the other. Wherefore, all Hostilities, both by Sea & Land shall then immediately cease: All Prisoners on both sides shall be set at Liberty: And his Britannic Majesty shall forthwith, and without causing any Destruction, withdraw all his Armies, Garrisons & Fleets from the said United States, and from every Port, Place, and Harbour within the same; leaving in all Fortifications the American Artillery that may be therein: And shall also order and cause all Archives, Records, Deeds and Papers, belonging to any of the said States, or their Citizens, which in the Course of the War may have fallen into the hands of his Officers, to be forthwith restored and deliver’d to the proper States & persons to whom they belong.12
That the Navigation of the River Missisippi from its Source to the Ocean, shall for ever remain free and open.13
Separate Article.
It is hereby understood & agreed that in case Great Britain at the Conclusion of the present War shall be or be put in possession of West Florida, the Line of north Boundary, between the said province & the United States, shall be a Line drawn from the mouth of the River Yassous, where it unites with the Mississippi, due East to the River Appalachicola and hence along the middle of that River to its Junction with the Flint River &c.14
MS (Adams Papers); endorsed: “Articles / of New Treaty / Compared with the Copy / Carried home by Mr Strachey / by him & RO 5th Novr / 1782.” Filmed at [5 Nov.]. LbC (Adams Papers); APM Reel 109.
1. The document printed here, with its additions and deletions, is the final product of the negotiations that took place on 3 and 4 November. In his Diary entry for 3 Nov., JA describes the discussions among the American Commissioners about the terms of the treaty and the nature of their response to the British negotiators. JA’s Diary for 4 Nov. indicates that he “called on J. and went to Oswalds and spent with him and Stretchy from 11. to 3. in drawing up the Articles respecting Debts and Tories and Fishery” and also that he, and presumably Jay, were “in the Evening there again, untill near 11” (, 3:43–46). It was the basis for the text that Henry Strachey carried back to London for consideration by the Shelburne ministry. That seems evident from the revisions entered in the text and described in the notes since a comparison of the manuscript and JA’s Letterbook copy shows that with the editorial changes it is identical to the copy sent off with Strachey. Indeed, a notation on the Letterbook copy states that “the above is a Copy of Articles carried home by Mr: Strachey. Novr: 5th. 1782.” For JA’s comments on the negotiations that produced this second set of preliminary articles, particularly regarding debt repayment, the loyalists, and the fisheries, see his Diary entry of 4 Nov. (, 3:45–46) and his 6 Nov. letter to Robert R. Livingston, below.
2. In the Letterbook, the American Commissioners are listed as John Adams, Benjamin Franklin, and John Jay. This is the order in which they appeared in the preliminary treaty signed on 30 Nov., below, but it also reflects the order of names in the 15 June 1781 joint commission (vol. 11:373).
3. To this point the text is almost identical to that of the articles agreed to in October. Aside from substantive textual changes from this point on, the most apparent difference between the 8 Oct. and [4 Nov.] versions is that the second has no numbered articles (, 5:805–808).
4. With the exception of this passage establishing the northern boundary line as the 45th parallel from its intersection of the Connecticut River to the point at which it struck the Mississippi River, the provision establishing the boundaries of the United States is substantially the same as the corresponding passage in the 8 Oct. articles. The difference is that in the earlier version the passage from this point to the following colon reads, “to the northermost head of the Connecticut River; thence down along the middle of that river to the 45th degree of north latitude, and thence due west in the latitude 45 degrees north from the equator, to the northwesternmost side of the river St. Lawrence or Cadaraqui; thence straight to the south end of the Lake Nipissing, and thence straight to the source of the river Mississippi” (same, p. 806). The provision in the 8 Oct. articles followed the instruction regarding boundaries originally given to JA in Oct. 1779 and renewed in the joint commission’s instructions of June 1781. When that was rejected, the commissioners turned to the alternative proposal included in the instructions (, 4:181–182; vol. 11:376). The practical consequences of the two proposals were that under the 8 Oct. draft the United States would have included all of Ontario south of Lake Nipissing but excluded the upper peninsula of Michigan and the northeast portion of Minnesota; while under the [4 Nov.] version the new nation would have included Ontario south of the 45th parallel but excluded the northern portion of Michigan’s lower peninsula and all of the upper peninsula, the northern half of Wisconsin, and a larger portion of northeastern Minnesota. However, JA indicates in his letter to Livingston of 6 Nov., below, that the commissioners had offered the British negotiators the alternative of running the northern boundary “thro’ the middle of all the great lakes.” It was that solution to the boundary problem that was incorporated into the British draft of 25 Nov. and ultimately agreed to in the preliminary articles of 30 Nov., both below.
5. Although excluded here, this passage was largely restored at the end of Art. 2 of the preliminary articles signed on 30 Nov., below.
6. This provision would have moved the southern boundary northward. For its transformation into a separate article, see note 14.
7. The remainder of this paragraph was written in the left margin and marked for insertion at this point.
8. This paragraph was included because the 8 Oct. draft treaty did not mention the loyalists, and the Shelburne ministry could not agree to a treaty with such an omission. The conditional amnesty and restitution provided here was equally unacceptable, as was indicated by Richard Oswald in his letter of 4 Nov., above, and Henry Strachey in his of 5 Nov., below. In their response to Oswald of 7 Nov., below, the American Commissioners indicated that, insofar as the loyalists were concerned, they were unwilling to go further. For the Shelburne ministry’s renewed effort to do something meaningful for the loyalists, see Arts. 5 and 6 of the draft treaty of 25 Nov. that Strachey brought from London. For the commissioners’ refusal to go significantly beyond the terms in this paragraph, see the draft article on the loyalists of [ca. 26 Nov.] and Arts. 5 and 6 of the preliminary treaty signed on 30 Nov., both below.
9. In his Diary JA indicates that he drafted this article on 4 Nov. (, 3:45–46). Except that it names specific locations, it is very similar to Art. 3 of the draft treaty of 8 Oct. (, 5:807). For the evolution of this provision to its final form as Art. 3 of the 30 Nov. preliminary treaty and for the controversy over whether American access should be a “right” or a “liberty,” see the draft treaty of 25 Nov. and draft articles proposed on [28] and [29 Nov.], all below.
10. In his Diary JA indicates that the preceding paragraph and the present paragraph to this point were agreed to on the evening of 3 November. There JA describes the discussions earlier on the 3d between the American and British negotiators over the payment of debts, for which no provision had been included in the 8 Oct. draft, and their general agreement that there should be no obstacle to their payment (, 3:43–44, 46). For the evolution of the provision into Art. 4 of the 30 Nov. preliminary treaty, during which it grew progressively more succinct, see Art. 4 of the 25 Nov. draft and the draft article of [28 Nov.], all below.
11. The portions of the preceding paragraph referring to the cession of land by the Creeks and Cherokees of Georgia and this paragraph concerning the Penn lands in Pennsylvania are both exceptions to the article concerning the payment of debts. Neither appeared in the 8 Oct. draft or the draft of 25 November. For information regarding the 1773 Georgia land cession, see Kenneth Coleman, Colonial Georgia: A History, N.Y., 1976, p. 262; and for the Penn family’s effort to ensure that it was adequately compensated for its lands, see Lady Juliana Fermor Penn’s 24 Dec. letter, and note 1, below.
12. Virtually identical to Art. 2 of the 8 Oct. draft (, 5:807), this paragraph, with the omission of the words “From, & immediately after the Conclusion of the proposed Treaty,” was retained virtually verbatim as Art. 7 of both the 25 Nov. draft and the 30 Nov. preliminary treaty, both below.
13. Taken verbatim from the beginning of Art. 4 of the 8 Oct. draft (, 5:807), this sentence, with the addition of the words “to the Subjects of Great Britain and Citizens of the United States,” was retained as Art. 8 of both the 25 Nov. draft and the 30 Nov. preliminary treaty. In the 8 Oct. draft, however, Art. 4 was made much longer by the addition of text providing for virtually unlimited Anglo-American free trade. When the Shelburne cabinet considered the 8 Oct. draft, some objected that such a provision was too liberal a concession to the United States and that in any case such a provision would be more appropriate in a commercial treaty concluded following the peace. Although JA was not a party to the drafting of the article, its inclusion was in line with his view as expressed in numerous letters written after the signing of the preliminary treaty, that the best time to regularize Anglo-American trade was during the peace negotiations.
The possibility of some form of Anglo-American free trade did not die with the cabinet’s decision. In March 1783 the substance of the draft’s provision was included in the abortive American Intercourse Bill, for which see Edmund Jenings’ letter of 14 March 1783, and note 1, below. More intriguing was its resurrection during the 1783 negotiations between David Hartley and the American Commissioners over the definitive treaty. On 21 May, Hartley offered to insert the provision, virtually unchanged from the 8 Oct. draft, in the definitive treaty. The commissioners agreed, with some modifications, on the following day (, 3:126–127, 131–132). British opposition to further concessions, however, precluded its inclusion in the definitive treaty of 3 Sept. 1783, with the result that eleven years passed before a formal Anglo-American commercial agreement was concluded, and then it was under the far more restrictive provisions of Jay’s Treaty.
14. For the original form of this provision, see the canceled text at note 6. Not included in the 8 Oct. draft, this separate article reflected the preference of the commissioners in general and John Jay in particular for British control of West Florida due to their irritation at Spain’s effort to limit the western boundaries of the United States and its failure to recognize the new nation (, p. 344). It was retained in both the 25 Nov. draft and the 30 Nov. preliminary treaty, both below, but Congress did not ratify it, fearing that it would antagonize France and Spain; and Britain’s conclusion of preliminary peace treaties with France and Spain rendered the provision moot.