Discussions held prior to Jay’s arrival in Paris in June and subsequent changes in the British ministry set the stage for Jay’s efforts to insure Britain’s recognition of American independence before treaty negotiations began and to insist on a commission that would provide its representative at the peace table with powers comparable if not equal to those of his American counterparts. Jay’s concerns about the commission issued to Oswald on the basis of the Enabling Act matched or surpassed Franklin’s previously expressed concerns about Grenville’s commission.1

Jay’s previous experience of Spain’s resistance to acknowledging American independence made him determined to defend principle and American dignity and to follow precedents Congress had already laid down in dealing with Britain’s previously offered peace overtures. He rejected Vergennes’s suggestion, offered in the course of their conference of 10 August, that an exchange of powers between Oswald and the American commissioners would constitute “tacit admittance” of American independence and demanded revisions to Oswald’s commission. Concerned that Vergennes might seriously compromise American interests at the peace table if Britain did not acknowledge independence before treaty negotiations began, Jay searched for an alternative that would allow the Shelburne ministry to remain within the bounds set by the Enabling Act while conferring on the United States and her commissioners a status commensurate with acknowledged independence.2

Thomas Townshend’s letter of 1 September responded to Oswald’s letters of 17, 18, and 21 August and the enclosed reports of his conversations with the American peace commissioners in which Jay had made plain his concern about Britain’s failure to acknowledge American independence prior to the conclusion of a peace treaty. Townshend noted that the Americans had seen the 4th article of the instructions issued to Oswald on 31 July, which stated that, in case the Americans “are not at liberty to treat on any terms short of Independence,” he could assure them that he was authorized to concede it. This, he said, ought to have convinced them that peace negotiations with “the Thirteen United Colonies, were intended to be carried on and concluded with the Commissioners in Europe,” even though the Enabling Act did not permit the King to acknowledge independence “unconnected with a Truce or Treaty of Peace.”3

When Townshend’s letter arrived Franklin was again indisposed, so Oswald sought out Jay and attempted to reach an accommodation with him. As he indicated in his letter to Townshend of 10 September, published below, Jay continued to demand recognition of American independence, separate from and prior to the peace treaty. Oswald countered with an assertion that, if the Americans did not modify their position, nothing further could be done until Parliament met again. Although he had been taken aback by Jay’s stern critique of Britain’s conduct of the war and her vacillating policy on recognizing independence voiced in the course of their meeting of 7 August, Oswald was nevertheless convinced that Jay wanted a speedy end to the war and was as favorably disposed to Britain as an American peace commissioner could be. Jay reinforced these assessments of his stance by suggesting an alternative, a “constructive Denomination of Character . . . describing their Constituents as the Thirteen United States of America” in the preamble to the Treaty to be coupled with a new commission for Oswald that explicitly authorized him to treat with the American negotiators as commissioners of the United States. Such a commission, under the Great Seal, and only that, would satisfy the requirement for prior recognition.4

Both men wanted a clear understanding of the precise requirements the commission had to satisfy. At Oswald’s request, Jay sketched the “alteration” below, read Oswald a letter he had drafted on 9 September to explain his position, and promised to give him a fair copy of it before Oswald’s courier left for London. Both men conferred with Franklin, who privately told Jay he was concerned that the letter’s “positive” character would leave the Americans in a difficult position if Britain did not comply with the American demand. He also noted that it had not been submitted to the French for their advice, as Congress’s instructions required.5 Oswald sought and obtained assurances that both men would be “satisfied to go on with the Treaty,” without “a previous & absolute Acknowledgement of their Independence,” “with their Independence standing only as an Article of Treaty.” He noted that “With great difficulty they have yielded to this mode of Compromise.”6

Although he initially accepted Franklin’s advice and refused to give Oswald his draft letter of 9 September, Jay changed his mind and for, reasons he later explained to the Secretary of Foreign Affairs, handed it over to his British counterpart on condition that he would not make any “public” use of it. Oswald enclosed it in his letter to Shelburne, indicating that it could be shown to Townshend, but had not been sent to him so that it would not become a part of the public record of the negotiations.

Shelburne received Oswald’s dispatches of the 10th and 11th and their enclosures on 14 September, a day after conferences with Rayneval began. After considering them, the British cabinet moved forward. The minutes of 19 September recorded its decision to authorize Oswald to treat with the “Commissioners appointed by the Colonys, under the title of Thirteen United States, inasmuch as the Commissioners have offered under that condition to accept the Independence of America as the First Article of the Treaty.” This allowed the cabinet to describe the alteration as a means to provide the American commissioners with “the title they wished to assume,” but not “a final acknowledgment of independence.”7

On the 20th Townshend wrote to inform Oswald that the cabinet meeting had “at once agreed to make the Alteration in the Commission proposed to you by Mr. Jay.” He then expressed the hope that “the readiness” with which this had been done would be considered as “ample testimony of the openness and sincerity with which the Government of this Country is Inspired to treat with the Americans.”

The new commission received the seals on 21 September, and Townshend sent it to Oswald on the 24th with the “hope that the frankness with which we deal, will meet with a suitable return.” The step forward had not come easily. “We have,” Shelburne remarked to Oswald, “put the greatest confidence, I believe, was ever placed on men, in the American commissioners. It is now to be seen, how far they or America are to be depended upon. . . . I hope the public will be the gainer, else our heads must answer for it deservedly.”8