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To Benjamin Franklin from Robert R. Livingston, 7 January 1782

From Robert R. Livingston2

LS: Massachusetts Historical Society; copy3 and transcript: National Archives

Philadelphia 7th. January 1781 [i.e., 1782].

Dear Sir

As it does not appear improbable that the humiliation and Misfortunes of Great Britain may produce the same Sentiments that a Spirit of moderation dictates to the other beligerent Powers, and lead her to concur with them in their wishes for peace, It cannot be improper to acquaint you with the Objects which America most wishes to attain, and to furnish you with the Arguments on which they found their Claim to them. For such is their Confidence, not only in the justice of his most Christian Majesty, but in his friendship, that they firmly pursuade themselves, that he will not only preserve for them their undoubted Rights, but that he will even go so far as to procure for them, those advantages which they may reasonably demand on the close of a successful War; And I am perfectly satisfied that the loose hints that a detail of their Sentiments may afford to you and our other Commissioners will be strengthened and improved by your lights in such manner as to come before his Majesty in the most advantageous form.— The first point of discussion will be the Limits of the United States, The instruction given to Mr. Adams on the day of last4 explains the wishes of Congress on that Subject, nor can they admit of many doubts, except so far as they relate to our Southern Extent, the bounds between us and Canada being very well ascertained by Grants, Charters, proclamations and other Acts of Government, and more particularly by the Settlements of People who are engaged in the same Cause with us, and who have the same Rights with the rest of the Subjects of the United States. Our Western, and North western Extent will probably be contested with some warmth, and the reasoning on that Subject be deduced from General Principles, and from Proclamations and Treaties with the Indians.5 It is apparent from Charters that the Crown itself, & from recent Grants, made by its Representative in several of the States,6 that they considered their Authority to grant Lands to the Westward as coextensive with the right of Great Britain, unless they were restricted by their interference with other Governments, upon this principle the Servants of the Crown in New York granted Lands on the borders of Lake Erie to the westward of Niagara.— And Virginia even after the proclamation in 1763 patented considerable Tracts upon the Ohio far beyond the Apalacian Mountains. It is true the several Governments were prohibited at different Times from granting Lands beyond certain Limits, but these were clearly temporary restrictions, which the Policy of maintaining a good Understanding with the Natives dictated, and were allways broke thro’ after a short period as is evinced by the grants mentioned made subsequent to the proclamation in 1763. And indeed the proclamation itself furnishes a substantial Argument of the opinion of Britain with respect to the right which some or other of the States had to extend to the Westward of the Limits it prescribed otherwise it would not have been necessary to prohibit their Governors from Granting, as their Patents would in such cases have been invalid, and themselves subjected to the censure of their Master upon whom they were dependant. Unless therefore these Proclamations absolutely distroyed the right, they must be considered as proofs of its existance at the time, and after, they were issued,— The strictest Examination of them shews that they did not take away, but restrained an existing Right, and the subsequent Grants by the Govenors evidence that they were as is before asserted mere temporary restrictions. The same reasoning applies to the treaty at fort Stanwyx,7 and to other agrements with the Indians. Strong evidence is also found in a Map made by the Kings Geographers in which Virginia and the Carolina’s are laid down as extending to the Missisipi shortly after the last War,8 Arguments may also be drawn from the Quebec Bill, but as this is one of the laws that occasioned the War, to build any thing upon it, would be to urge one wrong in support of an other. But this matter may perhaps be seen in a different Light, and our pretentions placed upon a more extensive Basis by recurring to General Principles, and asking whence Great Britain derived her right to the waste Lands in America?9

Evidently from the Allegiance, which a Subject is supposed to carry with him wherever he goes, even tho’ he dislikes his Constitution, and seeks one that pleases him better.— Upon this false principle the oppressed Subjects of Great Britain seeking freedom in the wilds of America were supposed to extend to it the Soveriegnty of the Kingdom they had left. The rights of the King of Great Britain then to America were incident to his right of Sovereignty over those his Subjects that settled America and explored the Lands he claims, for the Idea of right derived from mere discovery, and the vain ceremony of taking possession without planting and continuing that possession is now fully exploded.— Vat: chap: 16—208.1

If then we admit what is necessary to our Independence, that the right of Sovereignty over the People of America is forfieted, it must follow that all Rights founded in that Sovereignty are forfieted with it, and that upon our setting up a new Sovereign in America, the rights which the first claimed as such devolve upon the second. Upon this principle Great Britain is left without a foot of Land in America beyond the Limmits of those Governments which acknowledge her jurisdiction.— It is in vain to say that the King of Great Britiain holds these back Lands by a Cession from other Powers, since those Cessions were grounded upon a prior Claim derived thro’ the People of America, and only served to confirm the Right which they gave the King of Great Britain, while he was their Sovereign and which he looses with his Sovereignty over them: This mode of reasoning is warranted by the practice which Great Britain uniformly held of treating with the Indian Nations thro’ their American Governors who have frequently executed with them the most solemn Acts, and sometimes extended the Kings protection to the Nations which occupy the waste Lands which are the Object of our present Claim. The expence of retaining their friendship almost allways devolved upon the respective States, who till lately, particularly in New York voted the sums necessary to support Smiths among them, and to procure the presents that were Annually made them. From hence then it follows that if the King of Great Britain had any rights over the back Lands in America, it must be as King of the People of America, ceasing to be king of those People, his right also ceases.— If he has no right over them but as merely Protector of the Savage Nations, that inhabit them, that connection and Duty also devolves upon us, since they evidently claimed that protection from him, as King of the Colonies and thro’ the Governors of those Colonies, and not as Soveriegn of a kingdom three thousand Miles from them, this Country having chosen a new Soveriegn, they may rightfully claim its Protection.— Their is some reason to believe that Great Britain considered their rights, in many instances as extending no farther than their right of preemption and protection, as may be inferred from the passages in the negotiations for a peace with France in the Year 1761. refered to in the Margin.2 This suggests a new Idea, which however I am not warranted by any Act of Congress in mentioning, and therefore you will only consider it as the Sentiment of an Individual. If the Mediators should not incline to admit our Claim, but determine on restricting our limmits, either by the extent of our Grants, the course of the Mountains, the sources of the Rivers, or any other of those Arbitrary Rules, that must be sought, when solid Principles are relinquished, perhaps it would not be dificult to bring them to agree, that the Country beyond those Limmits belongs to the Nations which inhabit it, That it should enjoy its independance under the guaranty of France, Spain, Great Britain and America, and be open to the trade of those whose Lands border upon them.

This tho’ restrictive of our rights would free us from the well grounded apprehensions that the Vicinity of Great Britain, and their command of the Savages would give us, they already possess Canada, and Nova Scotia, should that immense Teritory which lays upon the rear of the States from the Gulph of St. Lawrence to the Gulph of Mexico be acknowledged to be vested in Great Britain it will render our Situation truly hazardous. The Lands as you know are infinitely better than those on the Coast. They have an open communication with the Sea by the Rivers St. Lawrence and the Missisipi, and with each other by those extensive inland Seas with which America abounds, they will settle with the utmost rapidity from Europe, but more particularly from these States. Attachment to the Goverment freedom from taxes, a prospect of bettering their fortunes, and the fertility of the Soil will invite numbers to leave us. This cooperating with the Leven of disaffection which will continue to work here for many years may produce the most dangerous Effects especially upon the Southern States, which will from the nature of their Soil and husbandry be thinly settled for many Years while the Lands which lay near them beyond the Mountains will soon be filled with a hardy race of People inimical to them, who to their own strength will be enabled to join that of the Savages subject to their Command.

If it is an object with the maritime Powers to lessen the Commerce, and by that means diminish the dangerous dominion that Great Britain has in some measure usurped over the Ocean, they must prevent her possesing herself of the Country in question, since besides the whole fur and Peltry trade that she will thereby engross, the demands of this great Country will give a new Spring to her Manufactures, which (tho’ the Floridas should be ceded to Spain) will find their way into it, by the river St Lawrence, and thro’ the numerous Lakes and Rivers which communicate with it. Add to this, that Settlements are allready formed beyond the Apalacian Mountains by People who acknowledge the United States, which not only give force to our Claims, but render a relinquishment of their Interest highly impolitic and unjust. These and a variety of other reasons which will suggest themselves to you, and the Gentlemen joined in the Commission with you will doubtless be urged in such terms as to convince the Court of France that our mutual Interests conspire to keep Britain from any teritory on this Continent beyond the bounds of Canada, should the Florida’s be ceded to Spain she will certainly unite with you on this point, as the security of that Cession will depend upon its success.

The Fisheries will probably be an other source of Litigation, not because our rights are doubtfull, but because Great Britain has never paid much attention to rights which interfere with her Views.

The Arguments of which the People of America found their claim to fish on the Banks of Newfoundland, arise first from their having once formed a part of the British Empire, in which State they allways enjoyed as fully as the People of Britain themselves, the right of fishing on those banks. They have shared in all the Wars for the extension of that right, and Britain could with no more justice have excluded them from the Enjoyment of it (even supposing that one Nation could possess it to the exclusion of an other) while they formed a part of that Empire, than they could exclude the People of London or Bristol. If so the only enquiry is how have we lost this right, if we were Tenants in Common with Great Britain while United with her, we still continue so, unless by our own Act we have relinquished our Title. Had we parted with mutual Consent, we should doubtless have made partition of our common Rights by Treaty. But the oppressions of Great Britain forced us to a seperation, (which must be admitted, or we have no right to be independant) it cannot certainly be contended that those oppressions abridged our Rights or gave new ones to Britain, our rights then are not invalidated by this seperation, more particularly as we have kept up our Claim from the commencement of the War, and assigned the attempt of Great Britain to exclude us from the fisheries as one of the causes of our recurring to Arms.3

The second Ground upon which we place our right to fish on the Banks of Newfoundland provided we do not come within such distance of the coasts of other powers as the law of Nations allows them to appropriate, is the right which Nature gives to all Mankind to use its common Benefits, so far as not to exclude others. The Sea cannot in its nature be appropriated. No Nation can put its mark upon it, Tho’ attempts have sometimes been made to set up an Empire over it, they have been considered as unjust usurpations, and resisted as such in turn by every Maritime Nation in Europe.—4 The Idea of such Empire is now fully exploded by the best writers.

The Whale fishery in every Sea, and even upon the Coasts of those Princes who do not exercise it themselves is considered as a common right, and is enjoyed by such Nations as chuse to pursue it. The Cod fishery upon the dogger bank and in other parts of the European Seas are claimed exclusively by no Nation. The Herring Fishery is carried on daily by the Dutch on the Coast of England.— And if the Banks of Newfoundland are not equally common it is because some Nations have relinquished their Rights, and others find it impossible to exercise them for want of Harbours to receive their Vessels, and Shores to dry their fish on.— When we say that we are willing to exercise it under these inconveniences, there can certainly be no further dispute about our right, and the only remaining question will be, the distance that we ought to keep from the Shores possessed by the Enemy. Tho’ strictly speaking from our first principle we have a common Right in them.— This Subject is treated so much at large by Grotius and Vattel that I do not think it necessary to detail Arguments which tho’ urged by People here from their feelings, you will find much better stated there.5 Give me leave however to urge some that arise from our particular circumstances.— All the New England States are much interested in this point.— The State of Massachusets more particularly, it has no Staple, it does not raise its own Bread, its principle Commerce consisted before the War in fish, which it supplied to the rest of the Continent in exchange for Rice flour &c. and to the West Indies for Rum Sugar, and Molasses; it shiped little to Europe 1st. because it could not fish so cheap as the People of England. 2dly. because their fish was not so well cured, in general owing to their fishing at improper Seasons, And to their using Salt, which is said to be of a more harsh Nature, than what the European Vessels bring out with them,— Should this State and Newhampshire which is allmost in similar Circumstances be excluded from the fisheries they must be reduced to great distress, it will be impossible for them to pay for the necessaries they must receive from Abroad, they will see with pain their Sister States in the full enjoyment of the Benefits which will result from their Independance, while their own Commerce is checked, and their State impoverished, they will consider their Interests as sacrificed to the happiness of others, and can hardly forbear to foster discontents which may excite the most dangerous divissions.

An Idea has also gone forth, and it is fomented by the disaffected, that France wishes from interested Views to monopolize the Fishery, at least to exclude all other Competitors but Great Britain,—6 Those who have attended to the disinterested Conduct of France during the War, oppose to this Sentiment the Honor and Good Faith of their Ally.— The little Interest that he can have in excluding a People from a right, which would not interfere with his, since France does little more than supply itself, and the New England Fishery for the most part only supplys the Continent and Islands of America. They see the Care with which France has endeavoured to cultivate a good Understanding between that Kingdom and these States, and they are pursuaded that so inconsiderable an Object will not be put in competition with the harmony which ought to subsist between them, or administer food to those unworthy jealoussies— And so much does this Sentiment prevail in Congress, that their present Prospects have not induced them to alter your Instructions, more particularly as they have received, thro’ the Minister of France, assurances that his Majesty was pleased with the Proofs Congress had given him of their Confidence, and that he would in no Event make any Sacrifices of their essential Interests, which necessity should not compel him to, That he had no reason to apprehend from the Events of the War, that such Necessity would exist,—7 These Events have become so much more favorable since the Date of the Letter which contained these assurances. That Congress persuade themselves his Majesty will not be driven to make sacrifices equally painful to him, and injurious to us.— But that as we owe our Success in war to his magnanimity and generosity, we may be equally indebted to his Justice and Firmness for an honorable peace.

It is not improbable that Great Britain will endeavour to make some stipulations in favour of their American Partyzans, who have been banished the Country, or whose property has been forfeited, you will doubtless be sensible of the inconvenience and danger to which their return will subject us, and the injustice of restoring to them what they have so justly forfeited, while no compensation is made to us for the loss of Property and the calamities they have occasioned.

There can be little doubt, that every society may right-fully banish from among them, those who aim at its subversion, and forfeit the property which they can only be entitled to by the Laws and under the Protection of the Society, which they attempt to distroy, without troubling you therefore on the point of Right, I will just mention a few of the consequences that would result from a stipulation in their favor; 1st. it will excite general dissatisfactions and tumults.— They are considered here as the Authors of the war, those who have lost Relations and friends by it,— Those who have been insulted by them, while starving in Prisons, and prisons Ships, Those who have been robbed or plundered, or who have had their houses burned, and their families ill treated by them, will in spite of all laws and treaties avenge themselves, if the real or supposed Authors of the calamities ever put themselves in their power, nor will the Government be able to prevent what the feelings of the Body of the People will Justify.

Should they be permitted to reside among us they will neglect no means to injure and Subvert our Constitution and Goverment, and to sew divisions among us in order to pave the way for the introduction of the Old System.— They will be dangerous Partizans of the Enemy equally unfriendly to France and to us, and will shew themselves such on every occasion.

To restore their Property in many States is now become impossible, it has been sold from hand to hand the money arising from it has sunk by depreciation in the public Treasury, to raise the Value by Taxes, or to wrest the Lands from the hands of the Proprietors are equally unjust, and impossible. Many of the very People who would demand the Restitution have grown Rich by the Spoils and Plunder of their Country, many others who were Beggars at the beginning of the War owe their present Affluence to the same Cause.— So that at least the Account between the two Nations should be Liquidated before any Claim can be sett up by the aggressors.— How far it will be possible to obtain a compensation for the injuries wantonly done by the Enemy, you will be best able to judge, be assured it is anxiously desired.

Give me leave to mention to you the necessity of stipulating for the safe delivery of all Records, and other Papers of a public and private Nature, which the Enemy have possesed themselves of, particularly of the Records of New York which Mr. Tryon sent to England,8 and the private papers of many gentlemen of the Law in different parts of the Continent by which the Rights of Individuals may be materially affected.

Thus Sir, I have touched upon the principle points, that America wishes to attain in the Peace which must end this Bloody War. Perhaps in so doing I have given both you and myself unnecessary Trouble, since I have urged nothing but what your own knowledge of the Country, and that of the other Gentlemen in the Commission would have suggested to you. However conceiving that Circumstances might render it necessary for you to declare that you spoke nothing more than the prevailing Sentiments of your Court, this Letter will serve to vouch the assertion.

Should the Florida’s be ceded to Spain, as there is nothing Congress have more at heart than to maintain that friendly intercourse with them, which this Revolution has happily begun it will [be] essential to Fix their Limmits precisely for this purpose see Mr Adams’s former Instructions.9

Affairs here are in the same state, as they were when I last wrote,1 except that the Enemy in South Carolina have called in all their out Posts, and shut themselves up in Charles town where they will be closely invested when General St Clair joins, which must have happened about the last of December.— The Briliant Expedition at St. Eustatia does the highest Honor to the Marquis De Bouillie and The french Nation. I flatter myself, it will be of singular Use in Mr. Adams’s Negotiations.2

I have the Honor to be Dear Sir with the greatest Respect and Esteem your Excellency’s most Obedt: humble Servant

Rob R Livingston

It being extremely dificult to get the following Books, you will be pleased to buy them, and such others as you may think usefull, and send them over for the use of this Office.

Grotius & Puffendorph the best Editions3

Smiths inquiry4

Corps diplomatique

Machiavels—political Works5


Lock on Government and Money6

Child, Price—Sidney7

Ordinances de la Marine

American Tracts, and Papers relating to American History

Maps American atlas

Wickforts Ambassador8

de lHome dëtat Le bruirie(?)1

Laws of Admiralty of G Britain

Lex Mercatoria2

Lee on Captures3

Endorsed: Mr Secry Livingston Jan 7. 1782

[Note numbering follows the Franklin Papers source.]

2Writing as an individual, as he did not have congressional authorization for the recommendations herein. This letter may be compared with the advice on war objectives delivered to Congress the following day by a committee comprised of James Madison, James Lovell, and Daniel Carroll: JCC, XXIII, 472–81.

3Which contains substantive differences from the LS (as noted below) as well as minor ones. It is numbered “6” and is published in Giunta, Emerging Nation, I, 285–93. The transcript indicates that only one copy was sent to BF, aboard the French frigate Hermione.

4The date is left blank in the copy and transcript as well as the LS. No instructions on borders were given to JA in 1781, but Congress had provided him such instructions on Aug. 14, 1779: JCC, XIV, 958–60.

5A lengthy passage from the copy is omitted here: “The Subject is undoubtedly intricate and Delicate, yet upon candid investigation, I believe it will appear that our extention to the Mississippi is founded in justice, and that our claims are at least Such, as the events of the War gives us a right to insist upon; your Situation furnishing you amply with the various documents, on which Great Britain founded her claim to all the Country east of the Mississippi, previous to the Treaty of Paris, I will not trouble you with references to them, which would at any rate be imperfect, from the want which prevails here of Books & papers. Taking it for Granted that the King of Great Britain was entitled to that extent of Country (which he at least cannot contravene) it only remains to examine how far he considered it, as within the limits, of some or other of the United States, because he can no more pretend to abridge those Limmits, than claim by any other right of which the United States are in possession.”

6The beginning of this sentence differs in the copy: “His Idea of these limmits is apparent from Charters granted by the Crown, and from recent grants made by its representatives in several of the States, it appears …”

7A 1768 treaty with the Iroquois which opened huge tracts of land to settlement, even though the Iroquois claim to them was at best dubious. Although its terms went beyond what the British government had authorized, it accepted them: XV, 264–5, 275–9; Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650–1815 (Cambridge, New York, and Port Chester, N.Y., 1991), pp. 351–3.

8They are so shown in “An Accurate Map of North America Describing and Distinguishing the British and French Dominions in this great Continent According to the Definite Treaty Concluded at Paris 10th February 1763,” which is reproduced in Lawrence Henry Gipson, The British Empire before the American Revolution (15 vols., Caldwell, Idaho, and New York, 1936–70), IX, facing p. 46.

9Here a sentence has been lined out: “It is an established Law that the right to an unsettled Country, arises not from the vain Ceremony of taking possession but from arbitration.”

1Emmerich de Vattel, Le Droit des gens (2 vols., Neuchâtel, 1758), book I, chapter XVIII, section 208.

2In the margin Livingston wrote, “Answer of England to the Ultimatum of France recd. 1st. Septr. 1761 2 Section of II Articlle”. During the abortive Franco-British peace negotiations of 1761 Britain proposed establishing a neutral section along the eastern bank of the Mississippi, but with the Cherokee, Creek, Chickasaw, and Choctaw nations under British protection. This article is published in Francis Thackeray, A History of the Right Honourable William Pitt, Earl of Chatham (2 vols., London, 1827), II, 593.

3In the margin Livingston wrote, “Declarations of the reasons for taking arms”. See JCC, II, 149.

4On July 9, 1761, the duke of Bedford, a former First Lord of the Admiralty, warned Bute against excluding France from a share in the Newfoundland fishery: “The endeavouring to drive France out of any naval power is fighting against nature, and … must excite all the naval powers of Europe to enter into a confederacy against us, as adopting a system, viz., that of a monopoly of all naval power, which would be at least as dangerous to the liberties of Europe as that of Louis XIV was”: Lord John Russell, ed., Correspondence of John, Fourth Duke of Bedford … (3 vols., London, 1842–46), III, 26.

5Vattel, Le Droit des gens, book I, chapter XXIII; Hugo Grotius, The Freedom of the Seas, trans. Ralph Van Deman Magoffin (New York, 1916).

6Vergennes seems to have had no objections in principle to American fishing rights as long as they did not interfere with French claims. He doubted, however, the validity of American claims and was not prepared to continue the war in order to assist the United States to obtain British recognition of them: Orville T. Murphy, “The Comte de Vergennes, the Newfoundland Fisheries, and the Peace Negotiations of 1783: a Reconsideration,” Canadian Historical Review, XLVI (1965), 32–46.

7See Vergennes to La Luzerne, Oct. 7, 1781, and Livingston’s Notes of a Meeting with La Luzerne, [Nov. 23, 1781]: Giunta, Emerging Nation, I, 251–3, 264–6.

8Former New York governor William Tryon.

9The copy reads, “… for which purpose the instructions to Mr Adams will serve as your directions.” JA’s instructions, cited above, delineated the desired borders of the United States, including its border with Florida.

1On Dec. 16, above.

2On Nov. 26, the Dutch colony had been captured from the British by a force of 1,500 troops led by the marquis de Bouillé, the governor general of Martinique: Gaz. de Leyde, Jan. 15, 1782; Rice and Brown, eds., Rochambeau’s Army, I, 91n, 152n; W. M. James, The British Navy in Adversity: a Study of the War of American Independence (London, New York, and Toronto, 1926), pp. 266–7.

3Hugo Grotius, De Jure Belli ac Pacis [The Rights of War and Peace] (Paris, 1625), and Samuel, Baron von Pufendorf, De Jure naturae et Gentium [Of the Law and Nature of Nations] (Lund, Sweden, 1672).

4Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (2 vols., London, 1776).

5The most relevant works of Niccolò Machiavelli were Il principe [The Prince] (Florence, 1732) and Discorsi sopra la prima deca di Tito Livio [Discourses on the First Ten Books of Livy] (Rome, 1531).

6John Locke, Two Treatises of Government (London, 1690), Some Considerations of the Consequences of the Lowering of Interest, and Raising the Value of Money … (London, 1692), and Further Considerations concerning Raising the Value of Money … (London, 1695).

7Sir Josiah Child, Brief Observations concerning Trade … (London, 1668) and A New Discourse of Trade … (London, 1668); Richard Price, Observations on the Nature of Civil Liberty (London, 1776); Algernon Sidney, Discourses concerning Government (London, 1698).

8Abraham de Wicquefort, L’Ambassadeur et ses fonctions (2 vols., The Hague, 1681).

1We do not recognize the name of the author. A contemporary book of that title, translated from the Italian, was Nicolò Donato, L’Homme d’Etat (Liege, 1767).

2Cotton Mather, Lex Mercatoria. Or, the Just Rules of Commerce Declared (Boston, 1705).

3Sir George Lee (1700–1758) was believed to be the author of a work on the nature and extent of court jurisdiction over seized neutral ships and cargoes: DNB. We do not know which of these books BF was able to obtain, but his account with Ferdinand Grand has a March 25 entry of 800 l.t. for books purchased from Pissot for Livingston: Account XXVII (XXXII, 4).

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