To Robert R. Livingston
Hague Augst: 18th. 1782
I have the honor to inclose, for the information of Congress a Copy of Mr: Fitzherbert’s Commission.1
Georgious tertius, Dei gratiâ, magnae Britanniae, Franciae, et Hiberniae Rex, Fidei defensor, Dux Brunsvicensis et Luneburgensis, Sacri Romani Imperii Archi Thesaurarius et Princeps Elector &ca Omnibus et Singulis, ad quos praesentes hae literae, pervenerint, salutem.
Cum belli incendio, jam nimis diu diversis orbis Terrarum partibus flagrante, in id quam maxime, incumbamus, ut Tranquillitas publica, tot litibus, Controveriisque vitecompositis; reduci et stabiliri possit, cumque eâ de causa, virum quendam tanto negotioparem, ad bonum fratrem nostrum, Regem Christianissimum, mittere decrevimus.
Sciatis igitur, quod no, Fide, Industriâ, Ingenia perspicaciâ et rerum usu, fidelis et delecti nobis Alleini Fitzherbert, Armigeri plurimum confisi, eundem nominavimus, fecimus et constituimus, Sicut per praerentes, nominamus, facimus, et constituimus, nostrum verum, certum et indubitatum Commissarium, Procuratorem et Plenipotentiarium, dantes et concedentes eidem, omnem et omnimodum Potestatem, Facultatem, Authoritatenque, nec non Mandatum generale pariter ac speciale (ita tamen ut generale, speciali non deroget nec e contra) in aulâ pradicti bonis fratris nostri, Regis Christianissimi, pro nobis et nostro nomine, una cum Legatis, Commissariis, Deputatis et Plenipotentiarius, tam celsorum et Praepotentium Dominorum, ordinum Generalium Faederati Belgii, quam, quorum cunque Principum et Statuum quorum interesse poterit, Sufficiente authoritate instructis, tam Singulatim ac division, quam aggregatim ac conjunction, congrediendi, et colloquendi atque cum ipsis de Pace firma et stabili, sinceraque Amicitia, et Corcordiâ, quantotius restituendis, conveniendi, tractandi, consulendi et concludendi; eaque omnia, quae ita conventa et conclusa fuerint, pro nobis et nostro nomine subsignandi, superque conclusis, Traetatum Tractatusue, vel alia instrumenta, quot quot, et qualia necessaria fuerint, conficiendi, mutuoque tradendi, recipiendique omnia alia, quae ad opus supra dictum feliciter exequendum pertinent, transigendi, tam amplis modo et formâ, ac vi, effectuque, pari, ac nos, Si interessemus, facere et praestare possemus, Spondentes, et in verbo regio promittentes, nos omnia et singula, quaecunque, a dicto nostro Plenipotentiario transigi et concludi contigerint, grata, rata et accepta, omni meliori modo habituros, neque passuros unquam, ut in toto vel in parte, a quoniam violenter, aut ut iis, in contrarium eatur.
In quorum majorem Fidem, et Robur, Praesentibus, manu nostrâ regia signatis, magnum nostrum, magnae Britaniae Sigillum appendi fecimus; Quae dabentur in Palatio nostro Dioi Jacobi, vicessimo quarto die mensis Julii, Anno Domini, millessimo, Septingintessimo, Octogessimo Secundo, Regnique nostri, vicessimo secundo.2
The words Quorum cunque Statuum quorum interesse poterit, include the United States accordg. to them, but not accordg. to the King who uses them: So that there is still room to evade.3 How much nobler and more politic was Mr: Fox’s idea to insert the “Ministers of the United States of America,” expressly?
The States-General have appointed Mr: Brantzen their Minister Plenipoy: to treat concerng Peace, and he will set off for Paris in abt: three Weeks. His Instructions are such as we should wish.4
The States of Holland and West-friesland have determined the last week upon our project of a treaty of Commerce, and I expect to enter into a conference with the States General this week, in order to bring it to a conclusion. I hope for the Ratification of the Contract for a loan, wh. has been sent five different ways. Upon rect. of this ratification, there will be thirteen or fourteen hundred thousand Guildres ready to be paid to the orders of Congress by Messrs: Wilhem & Jen Willink, Nicholas & Jacob Van Staphorst, and de la Lande & Fynjë.
The States and the Regencies, are taking such measures with the Stadtholder, by demanding his orders and Correspondences abt: Naval Affairs, and by reassuming their own Constitutional Rights, in the appointment of Officers &c. as will bring all things to rights in this Republic, which we shall find an affectionate and an usefull friend.5
The Communication of the following Instructions to me is such a piece of friendship, and such a mark of Confidence, as makes it my duty to request of Congress that it may be kept secrett.
Instructions projected and passed for Mr: the Ambassador Lesteven de Berkenrode and Mr: de Brantzen.
1st. His most Christian Majesty, having manifested, in the most obliging, manner, by his Ambassador Extraory:, Mr: le duc de la Vauguion, who resides here, his favorable intention, to have an eye to the Interests of the Republic, in the negotiations for a general peace; the aforesd. Ministers, will neglect nothing, but on the contrary will employ all their diligence and all their Zeal to preserve and fortify, more and more, this favorable disposition of his Majesty, towards this State.
2dly. To this end, these Gentlemen, in all wh. concerns the objects of their Commission, or wh. may have any relation to them, will act in a communicative manner, and in concert with the ministry of his sd. majesty, and will make confidential Communications of all things with them.
3dly. They will not enter into any negotiation of Peace, between the British Court and the Republic, nor have any Conferences thereupon, with the ministers of sd. Court, before they are assured, beforehand, in the clearest manner and without any equivocation, that his British Majesty, has in fact and continues to have, a real intention to acquiesce without reserve, that the Republic be in full possession and indisputable enjoyment, of the Rights of the Neutral Flagg, and of a free Navigation, in conformity and accordg. to the tenor of the points enumerated in the declaration of Her Imperial Majesty of Russia, dated the 28th of February, 1780.6
4thly. When these Gentlemen shall be certain of this, and shall have recd. the requisite assurances of it, they shall conduct in such a manner in the Conferences wh. shall be then held thereupon with the Ministers of his British Majesty, as to direct things to such an end that in projecting the Treaty of Peace and Friendship between his sd. Majesty and the Republic, all the points concerng. the free navigation be adopted word for word, and literally, from the sd: declaration of her Imperial Majesty and inserted in the sd. Treaty; And moreover in regard to Contraband, (upon the subject of which the sd. declaration refers to the Treaties of Commerce, then subsisting between the respective Powers.) that they establish henceforward a limitation so precise and so distinct, that it may appear, most clearly in future, that all naval stores (les munitions ou mattiers navales) be held free merchandizes, and may not, by any means, be comprehended under the denomination of Contraband. As also, that with regard to the visitation of Merchant Vessells, they establish the two followg. rules as perpetual and immutable—Viz, 1st. That the Masters (Patrons) of Merchant Ships shall be discharged upon exhibiting their Documents, from whence their Cargoes may be known, and to wh. faith ought to be given, without pretending to molest them by any visitation. 2dly. That when merchant Ships shall be convoyed by vessells of War, all faith shall be yielded to the Commanding Officers, who shall escort the Convoy, when they shall declare and affirm upon their word of honor, the nature of their Cargoes; without being able to require of vessells convoyed, any exhibition of Papers, and still less to visit them.
5thly. These Gentlemen shall insist also, in the strongest manner, and, as upon a condition, sine qua non, upon this, that all the possessions conquered fm. the Republic, by the Ships of War or Privateers of his British Majesty, or by the arms of the English East-India Company, during the Course of this war; or which may be further conquered fm. it, before the conclusion of the Peace, be restored to it, under the eventual obligation of Reciprocity; and this, as far as possible, in the same state in wh: they were at the time of the Invasion. And, whereas the greatest part of these possessions have been retaken fm. the common enemy, by the arms of his Most Christian Majesty, these Gentlemen will insist, in the strongest manner with his Majesty and his Ministry, that, by the promise of the restitution of these possessions to the state, immediately after the conclusion of the Peace, the Republic may receive real proofs of the benevolence and of the affection, wh. his Majesty has so often testified for it.
6thly. These Gentlemen will insist also, in the strongest manner, upon the just indemmnification for all the Losses, unjustly caused, by G. Britain, to the State and to its Inhabitants, both in Europe and elsewhere.
7thly. In the affairs concerng. the interests of the Company of the East Indies of this Country, these Gentlemen ought to demand and receive the Considerations of the Commissaries, who are now at Paris, on the part of the Company, and act in Concert with them, in relation to these affairs.
8thly. In all respects, these Gentlemen will hold a good Correspondence with the Ministers of the other belligerent Powers; and it is very specially enjoyned upon them, and recommended, to direct things to this, that in the sd. Negotiations, there be given no room to be able to conclude or resolve either Treaty or cessation of Hostilities, if it be not with the common and simultaneous Concurrence of all Belligerent Powers.
9thly. Finally, and in general, these Gentlemen during the course of all this Negotiation, will have always before their eyes that the Conferences, at Paris, at least for the present, ought not to be looked upon, but as preparatory and preliminary; and that the decision of points wh. may remain in litigation, ought to be reserved to a general Congress, together with the adjustment final, of the definitive Treaty of Peace: The whole, at least, untill their High Mightinesses further informed of the success of these Negotiations, and [of] the inclination of the belligerent Powers, shall find good to qualify these Gentlemen for the final and peremptory conclusion of a Treaty.
These Instructions will shew Congress in a clear light, the disposition of this Republic, to be as favorable for Us and our Allies, as [we] could wish it.
I have the honor to be, Sir, Yr: huml: servt.
RC in Charles Storer’s hand (PCC, No. 84, IV, f. 125–132). LbC (Adams Papers). Text lost at a worn fold supplied from the Letterbook copy.
1. In the Letterbook, the paragraph continued with the following canceled passage: “It has been Sent to the States General by, Mr De Berkenrode, the Dutch Ambassader at Paris, and has been communicated to me by a Friend. It is in these Words.” In the letter as printed in the Boston Patriot of 8 May 1811, JA restored the canceled passage and then wrote “[N.B. in 1810.—This essential document was not communicated to me by the Comte De Vergennes, nor by the Duke De La Vauguion, nor by Dr. Franklin, nor Mr. Jay—but by a member of the states general, in confidence. This occasioned me no small embarrassment. What could I write about it to my colleagues, who wrote nothing of it to me?]” The text of the commission to Alleyne Fitzherbert provided by JA, and translated in note 2, is that authorizing him to conclude a treaty with the Netherlands, but see note 3.
2. Translation done by Congress from a copy of the commission in C. W. F. Dumas’ hand (PCC, No. 93, II, f. 186–188):
“George the Third, by the grace of God, of Great Britain, France and Ireland, King, Defender of the faith, Duke of Brunswick and Lunenburg, Arch Treasurer and Elector of the holy Roman Empire—To all and every one who shall see these Presents Greeting.
“Whereas the ravages of War having already spread over too many parts of the world, we are greatly desirous to see public tranquillity restored, and so many quarrels amicably settled, and whereas we have resolved to send for this purpose a man equal to this arduous business to our good Brother the most Christian King—
“Know then, that we, greatly confiding in the fidelity, industry, knowledge understanding and abilities of our faithful and well beloved Allen Fitz Herbert, Esquire, We have nominated, appointed and constituted him, and we do by these presents nominate appoint and constitute him our true, certain and undoubted Commissary, Attorney and Plenipotentiary, giving and granting to him all and every sort of power, faculty and authority, as well as our general and special Mandate (in such a manner however, that the one may not derogate to the other) to repair to the Court of our aforesaid good brother the most Christian King, and there for us and in our name, with the Delegates, Commissaries, Deputies and Plenipotentiaries of the High and mighty Lords the states general of the United Netherlands, and with those of all Princes and states whom it may concern, having sufficient authority to meet and confer, as well jointly as separately and with them to agree, treat, consult and conclude, of the most speedy restoration of a firm and sincere peace, friendship and amity, to sign in our name all that he shall thus agree to and conclude, and to digest what he shall have concluded into a Treaty or Treaties, or any other Instruments, and as many such as shall be necessary, to receive and deliver the same, and to transact every other necessary matter to bring his business to a happy conclusion in the same form to be of the same validity as if it was transacted by ourselves in person, promising freely and on the word of a King to agree to, ratify and accept whatever shall be transacted and concluded by our said Plenipotentiary, and not to suffer at any time that it be violated entirely or in part, or that any thing may be done to the contrary.
“In faith whereof we have signed these presents with our Royal hand, and affixed thereto our seal of Great Britain. Given at our Palace at St. James the 24th day of July Anno Domini 1782 and in the 22d Year of our Reign.”
3. The Latin phrase reads, with those of all states whom it may concern. JA was troubled because Fitzherbert lacked a commission to negotiate specifically a peace treaty with the United States. Instead he held commissions to negotiate with France, Spain, and the Netherlands, with the United States being included only under the terms of the passage cited by JA. This was unacceptable because neither the British nation nor George III recognized the United States as independent and sovereign. Therefore, it was unwise to accept a mere verbal assurance that a commission that did not name the United States specifically as a party to the negotiations nevertheless included the United States among those states concerned in the negotiations and with whom Fitzherbert was empowered to negotiate. A treaty could be negotiated only between sovereign states, and in the absence of recognition, Britain was free to disavow any agreement that Fitzherbert might make with its colonies. This issue was not resolved until Richard Oswald received his commission of 21 Sept., below, authorizing him to negotiate with the United States.
4. In the Letterbook, the two paragraphs that followed were canceled. They read,
“For my own Part I will be very explicit with Congress. If I were now the Sole Minister for treating of Peace, I should decidedly refuse to enter into any Conferences with any one whatever, without full and express Powers to treat with the United States of America. If I had been alone when the first Messengers were sent over, I mean when Mr Diggs, and Mr oswald came over, my Answer would have been clear, that I never would treat but with such a Plenipotentiary. If my Opinion had been asked by Dr Franklin I should have given him the same. If this only wise and manly Part had been taken We should have had Such a Minister, long eer now to have treated with and Mr Fox’s System would have prevailed. But instead of this Dr Franklin Sends over to England Mr Alexander and he tells them that no such Acknowledgement of our Independence would be insisted on. Thus it is that all American affairs are conducted by Dr Franklin. I have not refused to act in the Commission with him because I thought it possible that I might perhaps do some little good in it, or prevent some Evil. But I despair, of doing much, to such a Degree, that I beg Congress would release me from this Tye and appoint another Minister of that Commission in my Room.
“At least this is my humble opinion. If We ever gain any Advantage from modern Britons, by relaxing in one Iota from our Principles and just Pretentions, I am wholly mistaken in their Character.”
When JA published this letter in the Boston Patriot of 8 May 1811, he included the canceled material and at the end of the letter wrote, “the paragraphs in the foregoing letter included within crochetts, thus, [from the words—for my own part, to the words wholly mistaken in their character] I omitted in my letter to Mr. Livingston, upon more mature reflection.”
5. At his point in the Letterbook, JA wrote and then canceled a closing to the letter, deciding to include the instructions to the Dutch negotiators.