Preliminary Articles: Second Draft, [4–7 November 1782]
Preliminary Articles: Second Draft
[Paris, 4–7 November 1782]
Articles agreed upon by & 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 & John Adams, 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, & 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 & 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 & in all things, to abide by & fullfill their Engagements with his most Christian Majesty.1
Whereas reciprocal advantages, & mutual Convenience are found by Experience to form the only permanent Foundation of Peace & Friendship between States, It is agreed to form the Articles of the proposed Treaty, on such Principles of liberal Equality, & Reciprocity as that partiall Advantages, (those seeds of Discord) being excluded, such a beneficial & satisfactory intercourse between the two Countries may be established as to promise & secure to both perpetual Peace & Harmony.2
His Britannic Majesty acknowledges the said United States Viz. New Hampshire, Massachusetts Bay, Rhode Island & Providence Plantations, Connecticut, New York, New Jersey, Pensylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina & Georgia, to be free Sovereign and independent States. That he treats with them as such; and for himself, his Heirs & 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, & shall be their Boundaries Viz:
From the north west Angle of Nova Scotia, being that Angle which is form’d by a Line drawn due north, from the source of St. Croix River to the High lands which divide the Rivers that empty themselves into the River St. Laurence, from those which fall into the Atlantic Ocean, and along the said High Lands, to the north western head of Connecticut River, thence down along the middle of that River to the forty fifth Degree of north Latitude, following the said Latitude, untill it strikes the River Missisippi. Thence by a Line to be drawn along the middle of said River Missisippi, untill it shall intersect the northernmost part of the Thirty first Degree of Latitude, north of the Equator.3 South, by a Line to be drawn due East from the determination of the Line last mentioned in the Latitude of Thirty one Degrees to the middle of the River, Apalatchicola or Catahouchi; thence along the middle thereof, to its junction with the Flint River; thence straight to the head of St. Mary’s River; and thence down along the middle of St. Mary’s River to the Atlantic Ocean. East by a Line from the mouth of said St. Mary’s River to the mouth of the River St. Croix in the Bay of Fundy, and by a Line drawn through the middle of said River to its Source; and from its Source directly north; to the aforesaid High Lands which divide the Rivers that 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,4 and lying between Lines to be drawn due East from the points where the aforesaid Boundaries of St. Croix River, & St. Mary’s River shall respectively touch the Bay of Fundy, & the Atlantic Ocean; excepting allways such Islands as now are, or heretofore have belong’d to the Colony of Nova Scotia, or have been within the Limits thereof.5
Upon a farther Consideration of the just Limits & 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 Yassous falls into the River Mississippi, and along the said Line due East to the River Apalachicola.6
It is agreed that all such Loyalists or Refugees, as well as all such British Merchants or other Subjects, as may be resident in either ^any^ of the united States at the Time of the Evacuation thereof by the Arms & 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 & Clemency to the said Refugees, as their respective Circumstances, & the Dictates of Justice and Humanity may render fit just and reasonable [in margin] ^and particularly that Amnesty & Indemnity be granted to all such of the said Refugees as may be unaffected by Acts, Judgments, or Prosecutions actually passed or commenced a month previous to such Evacuation.^7
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 and Hospitality to each others Fishermen as to his ^their^ own.8
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 lawful Impediment to recovering the full Value or Sterling Amount of such Bona fide Debts as were contracted before the year 1775.9 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 authorized to interfere, it must of necessity be referr’d 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 and immediately after the Conclusion of the proposed Treaty there shall be a firm & perpetual Peace between his Majesty & the said States; and 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,12 & without causing any Destruction, withdraw all his Armies Garrisons & Fleets from the said United States, and from every Port, Place, & Harbour within the same; leaving in all Fortifications the American Artillery that may be therein. And shall also order & cause all Archives, Records, Deeds and Papers belonging to either any of the said States, or their Citizens, which in the Course of the War may^ hav^e fallen into the hands of his Officers, to be forthwith restored & delivered to the proper States & Persons to whom they belong.
That the navigation of the River Mississippi from its Source to the Ocean shall forever remain free & open.13
Separate Article14
It is hereby understood and agreed, that in case Great Britain, at the Conclusion of the present War, shall recover, or be put in possession of, West Florida, the Line of north Boundary between the said Province and 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.15
D, in the hand of Caleb Whitefoord, with emendations in JJ’s hand, UkLPR: CO 5/ 8–3 (EJ: 4965). This text was essentially completed on 4 Nov., but, according to Oswald, JJ entered several additional changes on 7 Nov. in Oswald’s presence. These were not marked on this text and are indicated in the notes below. See Oswald to Strachey, 8 Nov., below; and Strachey to Townshend, 8 Nov. 1782 (, 1: 650–51). The commissioners’ retained copy is in MHi: Adams and is printed in , 38: 263–75; and , 14: 17–23. Endorsed: “Articles / of New Treaty / Compared with the Copy / Carried home by Mr. Strachey / by him & RO 5th Novr / 1782.” Cs: MiU-C: Shelburne 34 (EJ: 4928); MiU-C: Sydney Papers; additional texts in MHi: Adams, UkLPR, and DNA, as recorded in , 38: 263.
1. Between 11 and 15 Nov. 1782, the British cabinet developed a counterproposal of a draft treaty that was delivered to and approved by George III on 19 Nov., enclosed in Townshend to Strachey, 19 Nov. 1782, and presented to the commissioners by Oswald on 25 Nov. Cs, UkLPR: CO, 5/ 8–3, 349–61 (EJ: 4966, 5062, 4919); UkLPR: FO 97/ 157; C, in the hand of JA, MHi: Adams. Changes introduced in the cabinet’s draft treaty are published and discussed in , 14: 84–89, where the full text is published; and in , 38: 321–25. See also , 7: 74–77. For presentation of the counterproposal, see Strachey’s remarks of 25 Nov. 1782, below.
In the cabinet’s draft treaty, this paragraph is identical except for the omission of the concluding clause: “it being the Duty and Intention . . . his most Christian Majesty.” The cabinet’s draft included this instruction to Strachey: “N.B. If the American Commissioners wish to have the remainder mainder of the Title proposed by them, which follows the words Treaty accordingly, they may be admitted.”
2. For JJ’s earlier discussion with Oswald about the need for a lasting peace, see Oswald’s Notes on Conversations with Benjamin Franklin and John Jay, 7[–9] Aug. 1782, above.
3. The second draft treaty substituted the “St. Croix River’s” source for the middle of the St. John River. Other alternative boundaries proposed by the American Peace Commissioners were: west on 45° north latitude to the Iroquois River, thence along the middle thereof into Lake Ontario, and through the middle of Lake Ontario, Erie, Huron, and Superior, on to Long Lake and the Lake of the Woods, and thence to the northernmost part thereof (the later basis for the U.S. western boundary of 49° north latitude). See Oswald to Strachey, 8 Nov. 1782, below, with enclosures, on which see the source note. The final treaty adopted the boundary line through the middle of the Great Lakes as proposed by JA. See , 14: 18. Early in the negotiations Strachey had proposed a longitudinal line in the Northwest, which reminded JJ uncomfortably of the boundary proposed variously by Rayneval and Aranda. See , 358.
4. On the seaward boundary of the U.S. and the claims of the United States versus various North Atlantic states to the continental shelf on the basis, among others, of this clause, see Richard B. Morris, “The Treaty of Paris of 1783,” in Library of Congress, Fundamental Testaments of the American Revolution (Washington, 1973), 93–96; Report of Albert B. Maris, Special Master, in U.S. v. Maine et al., No. 35, Original, October Term 1973, 420 U.S. 515 (1975).
5. On 7 Nov. JJ struck out of the treaty the exception as to the Nova Scotia islands. See Oswald to Strachey, 8 Nov., below. The cabinet counterproposal adopts JJ’s change and omits “excepting allways such Islands as now are, or heretofore have belong’d to the Colony of Nova Scotia, or have been within the Limits thereof.” The cabinet accepted the new northeastern boundary line, which used the “St. Croix River,” a cartographic fancy.
6. According to Oswald, JJ also deleted this paragraph on 7 Nov. See Oswald to Strachey, 8 Nov. It is omitted in the cabinet draft.
7. The cabinet sought to extend the protection of American courts to the victims of confiscation, both to the “real British Subjects” of JJ’s first draft article, as well as to the refugees, enclosing not only recommended texts but four modifications. See also Strachey’s Remarks to the American Peace Commissioners, 25 Nov. 1782, below.
8. This article, drafted by JA, was more explicit in listing areas where drying and curing might be performed. See , 14: 22n9. The British cabinet’s instructions to Strachey of 19 Nov. change “right” to take fish and dry and cure to “liberty,” and in the cabinet version the blanket “right” to fish “in all other Places, etc.” was omitted. Under these latter instructions the fisheries provisions were no longer reciprocal, and coastal fishing was forbidden.
9. Shelburne’s verbal instructions of 20 Oct. 1782 had specified that “the Debts require the Most Serious attention.—that honest Debts may be honestly paid in honest Money.— No Congress Money.” See , 1: 619–20.
10. The original draft version of the Articles on British debts and Loyalists is in JJ’s hand in MHi: Adams, reel 359. See also , 3: 43–44. As regards forfeiture, the cabinet proposed a stronger version, providing for refunding to the person then in possession the bona fide price paid for the land.
11. The articles relating to the Georgia grants and the Penn family are omitted in the cabinet draft.
12. The cabinet draft omitted the opening phrase and changed the provision regarding evacuation from “forthwith” to “with all convenient speed.” With the exceptions noted here, this article closely resembled the second article of the first draft.
13. The British specified that freedom of navigation should be limited “to the Subjects of Great Britain and Citizens of the United States.”
14. See “The Separate Article” (editorial note) on pp. 162–64.
15. In the text retained by the commissioners, the separate article ends with the additional phrase “and thence along the middle of that River to its junction with the Flynt River”. See , 38: 275.
This northward readjustment retained the boundary as redrawn by the British in 1764. See 22. On 7 Nov. JJ crossed out “recover” and substituted “be”. See Oswald to Strachey, 8 Nov. 1782, below. The cabinet agreed to the separate article, but retained the phrase “shall recover, or be put in possession of.” For additional comments on changes made by the British to the second draft, see , 38: 321–25.