The American Peace Commissioners to Robert R. Livingston
Passy, 18th: July 1783
We have had the honour of receiving by Capt. Barney your two Letters of the 25th: of March and 21st of April, with the Papers referred to in them.1
We are happy to find that the Provisional Articles have been approved & ratified by Congress, and we regret that the Manner in which that Business was conducted, does not coincide with your Ideas of Propriety. We are persuaded however that this is principally owing to your being necessarily unacquainted with a Number of Circumstances, known to us who were on the Spot, and which will be particularly explained to you hereafter, and, we trust, to your Satisfaction, & that of the Congress.2
Your Doubts respecting the Separate Article we think are capable of being removed, but as a full State of the Reasons and Circumstances which prompted that Measure would be very prolix, we shall content ourselves with giving you the general Outlines.
Mr. Oswald was desirous to cover as much of the Eastern Shores of the Missisippi with British Claims as possible and for this purpose we were told a great deal about the ancient Bounds of Canada & Louisiana &ca &ca &ca The British Court who had probably not yet adopted the Idea of relinquishing the Floridas, seemed desirous of anexing as much Territory to them as possible, even up to the Mouth of the Ohio— Mr. Oswald adhered strongly to that Object as well to render the British Countries there of sufficient Extent to be, (as he express’d it) worth keeping & protecting, as to afford a convenient Retreat to the Tories for whom it would be difficult otherwise to provide; and among other Arguments he finally urged his being willing to yield to our Demands to the East, North and West, as a further Reason for our gratifying him on the Point in Question. He also produced the Commission of Govr. Johnson extending the Bounds of his Government of W. Florida up to the River Yassous and contended for that Extent as a Matter of Right upon various Principles which however we did not admit.3
We were of Opinion that the Country in Contest was of great Value both on Account of its natural Fertility, and of its Position; it being in our Opinion the Interest of America to extend as far down towards the Mouth of the Missisippi as we possibly could. We also thought it adviseable to impress Britain with a strong Sense of the Importance of the Navigation of that River, to their future Commerce on the interior Waters from the Mouth of the River St Lawrens to that of the Missisippi, and thereby render that Court averse to any Stipulations with Spain to relinquish it. These two objects militated against each other; because to inhance the Value of the Navigation was also to inhance the Value of the Countries contiguous to it, and thereby disincline Britain to the Dereliction of them. We thought therefore that the surest Way to reconcile & obtain both Objects would be by a Composition beneficial to both Parties. We therefore proposed that Britain should withdraw her Pretensions to all the Country above the Yassous and that we would cede all below it to her in Case she should have the Floridas at the End of the War, and at all Events that she should have a Right to navigate the River throughout its whole Extent. This Proposition was accepted, and we agreed to insert the contingent Part of it in a separate Article, for the express purpose of keeping it secret for the present. That Article ought not therefore to be consider’d as a mere Matter of Favour to Britain, but as the Result of a Bargain, in which that Article was a “quid pro quo.” It was in our Opinion both necessary & justifiable to keep this Article secret. The Negotiations between Spain France & Britain were then in full Vigour, and embarrass’d by a Variety of clashing Demands. The Publication of this Article would have irritated Spain, and retarded if not have prevented her coming to an Agreement with Britain. Had we mentioned it to the French Minister, he must have not only informed Spain of it, but also been obliged to act a Part respecting it that would probably have been disagreable to America, and he certainly has reason to rejoice that our Silence saved him that delicate and disagreable Task. This was an Article in which France had not the smallest Interest, nor is there any thing in her Treaty with us, that restrains us from making what Bargain we pleased with Britain about those or any other Lands, without rendering Account of such Transaction to her or any other Power whatever. The same Observation applies with still greater Force to Spain, and neither Justice or Honour forbid us to dispose as we pleased of our own Lands, without her Knowledge or Consent. Spain at that very time extended her Pretensions and Claim of Dominion not only over the Tract in Question, but over the Vast Region lying between the Floridas and Lake Superior; and this Court was also at that very Time soothing & nursing of those Pretensions by a proposed conciliatory Line for splitting the Difference. Suppose therefore we had offer’d this Tract to Spain in Case She retained the Floridas, should we even have had Thanks for it? or would it have abated the Chagrin she experienc’d from being disappointed in her extravagant and improper Designs on that whole Country? we think not.—
We perfectly concur with you in Sentiment, Sir, “That Honesty is the best Policy” but untill it be shewn that we have tresspass’d on the Rights of any Man or Body of men, you must excuse our thinking that this Remark as applied to our Proceedings was unnecessary.4
Should any Explanations either with France or Spain become necessary on this Subject, we hope & expect to meet with no Embarrassments. We shall neither amuse them nor perplex ourselves with ostensible and flimsy Excuses, but tell them plainly that as it was not our Duty to give them the Information, we consider’d ourselves at Liberty to withhold it, and we shall remind the French Minister that he has more Reason to be pleased than displeased with our Silence. Since we have assumed a Place in the Political System of the World let us move like a Primary & not like a Secondary Planet.
We are persuaded, Sir, that your Remarks on these Subjects resulted from real Opinion, and were made with all Candour and Sincerity. The Best Men will view Objects of this Kind in different Lights even when standing on the same Ground; and it is not to be wonder’d at that we who are on the Spot and have the whole Transaction under our Eyes should see many Parts of it in a stronger Point of Light then Persons at a Distance, who can only view it through the dull Medium of Representation.
It would give us great Pain if any thing we have written, or now write respecting this Court, should be construed to impeach the Friendship of the King & Nation for us. We also believe that the Minister is so far our Friend, and is disposed so far to do us Good Offices, as may correspond with, and be dictated by his System of Policy for Promoting the Power, Riches and Glory of France. God forbid that we should ever sacrifice our Faith, our Gratitude, or our Honour, to any Consideration of Convenience; and may he also forbid that we should ever be unmindful of the Dignity and independant Spirit which should always characterize a free and generous People.—
We shall immediately propose an Article to be inserted in the Definitive Treaty for postponing the Payment of British Debts for the Time mentioned by Congress.5
There are, no doubt, certain Ambiguities in our Articles, but it is not to be wonder’d at when it is consider’d how exceedingly averse Britain was to Expressions which explicitly wounded the Tories; and how disinclined we were to use any that should amount to absolute Stipulations in their Favour.
The Words for restoring the Property of Real British Subjects were well understood and explained between us not to mean or comprehend American Refugees. Mr. Oswald and Mr. Fitz-Herbert know this to have been the Case, and will readily confess and admit it. This mode of Expression was preferr’d by them as a more delicate Mode of excluding those Refugees, and of making a proper Distinction between them and the Subjects of Britain whose only particular Interest in America consisted in holding Lands or Property there.6
The 6th. Article vizt. where it declares that no future Confiscations shall be made &ca ought to have fixed the Time with greater Accuracy: We think the most fair and true Construction is, that it relates to the Date of the Cessation of Hostilities. That is the Time when Peace in Fact took Place, in consequence of Prior informal tho’ binding Contracts to terminate the War. We consider the Definitive Treaties as only giving the Dress of Form to those Contracts, and not as constituting the Obligation of them. Had the Cessation of Hostilities been the Effect of a Truce, & consequently nothing more than a temporary Suspension of War, another Construction would have been the true one.7
We are Officially assured by Mr. Hartley that positive Orders for the Evacuation of New-York have been dispatched, and that no avoidable Delay will retard that Event. Had we proposed to fix a Time for it, the British Court would have contended that it should be a Time posterior to the Date of the definitive Treaty and that would have been probably more disadvantageous to us than as that Article now stands.
We are surprized to hear that any Doubts have arisen in America respecting the Time when the Cessation of Hostilities took Place there. It most certainly took Place at the Expiration of one Month after the Date of that Declaration in all Parts of the World whether Land or Sea that lay North of the Latitude of the Canaries.8
The Ships afterwards taken from us in the more Northerly Latitudes ought to be reclaimed and given up: We shall apply to Mr. Hartley on this Subject, and also on that of the Transportation of Negroes from New York contrary to the Words and Intention of the Provisional Articles.—9
With great Esteem, we / have the honour to be, / Sir, / Your most obedient / & most humble / Servants.
RC (PCC, No. 85, f. 300–313); internal address: “The honble: / Robt. R. Livingston Esqr”; endorsed: “Joint Commissioners / July 18. 1783.” FC-Pr (Adams Papers). LbC (Adams Papers); APM Reel 109. LbC-Tr (Adams Papers); APM Reel 103.
1. Vol. 14:361–364, 435–438, but the letter also deals with issues raised in Livingston’s letters of 28 and 31 May (same, p. 503–504, 512–514), for which see notes 5 and 9.
2. With the exception of the following paragraph, the text of the letter as sent to Livingston and printed here is likely identical to the draft prepared by John Jay. But in the draft at this point, a passage consisting of 22 paragraphs was removed. The deleted text is as follows:
“Your Doubts on that Head appear to have arisen from the following Circumstances.
“1. That we entertained and were influenced by Distrusts and Suspicions, which do not seem to you to have been altogether well founded.
“2. That we signed the Articles, without previously communicating them to this Court.
“3. That we consented to a separate Article, which you consider, as not being very important in itself, and as offensive to Spain.
“4. That we kept, & still keep, that Article a secret.
“With respect to the first, Your Doubts appear to us some what singular. In our Negociation with the British Commissioner, it was essential to insist on, and, if possible, to obtain his Consent to four important Concessions, viz,
“1. That Britain should treat with us as being what we were, vizt. an independent People.
“The French Minister thought this Demand Premature, and that it ought to arise from, and not precede, the Treaty.
“2. That Britain should agree to the Extent of Boundary we claimed.
“The french Minister thought the Demand extravagant in itself, and as militating against certain Views of Spain, which he was disposed to favour.
“3. That Britain should admit our Right in common to the Fishery.
“The french Minister thought this Demand too extensive.
“4. That Britain should not insist on our reinstating the Tories.
“The french Minister argued, that they ought to be reinstated.
“Was it unnatural for us, Sir, to conclude from these Facts, that the french Minister was opposed to our succeding on these four great Points, in the Extent we wished? To us it appeared evident, that her Plan of a Treaty for us, was far from being such an one, as America wd. have preferred; and, as we disapproved of his Model, we thought it imprudent to give him an Opportunity of moulding our Treaty by it.
“Whether the Minister was influenced by what he really thought would be best for France, is a Question, which, however easy, or however difficult, to decide, is not very important to the Point under Consideration. Whatever his motives may have been, certain it is, that they were such as militated against our System; and as, in private Life, it is deemed imprudent to admit opponents to full Confidence, so, in public affairs, the like Caution seems equally proper.
“But, admitting the force of this Reasoning, why, when the Articles were compleated, did we not communicate them to the french Minister, before we proceeded to sign them? for the following Reasons, Sir!
“As Lord Shelburne had excited Expectations of his being able to put a speedy Termination to the War, it became necessary for him, either to realize those Expectations, or to quit his Place. The Parliament having met, while his Negociations with us were pending, he found it expedient, to adjourn it for a short Term, in Hopes of then meeting it with all the Advantage, which he might naturally expect, from a favorable Issue of the Negociation. Hence it was his Interest to draw it to a close before that Adjournment expired; and to obtain that End, both he and his Commissioner prevailed upon themselves to yield certain Points, on which they would, probably, have been otherwise more tenacious.— nay, we have, and then had, good Reason to believe, that the Latitude allowed by the British Cabinet for the Exercise of Discretion, was exceeded on that Occasion.
“You need not be reminded, Sir! that the King of G. Britain had pledged himself in Mr. Oswald’s Commission [21 Sept. 1782, vol. 13:483–485] to confirm and ratify, not what Mr. Oswald should verbally agree to, but what he should formally sign his name and affix his Seal to.
“Had we communicated the Articles, when ready for signing to the french Minister, he doubtless would have complimented us on the Terms of them; but at the same time he would have insisted on our postponing the Signature of them, until the Articles, then preparing between France Spain & Britain, should also be ready for signing— He having often intimated to us, that we shd. all sign at the same Time and Place.
“This would have exposed us to a disagreeable Dilemma.
“Had we agreed to postpone signing the Articles, the British Cabinet might, and probably would, have taken Advantage of it. They might have insisted that, as the Articles were Res infectæ, and as they had not authorized Mr. Oswald to accede to certain Matters inserted in them, they did not conceive themselves bound in honor or Justice to adopt Mr. Oswald Opinions, or permit him to sign and seal, as their Commissioner, a Number of Articles, which they did not approve. The whole Business would thereby have been set afloat again; and the Minister of France would have had an Opportunity, at least, of approving the Objections of the British Cabinet, and of advising us to recede from Demands, which, in his Opinion, were immoderate, and some of which were too inconsistant with the Views and Claims of Spain to meet with his Concurrence.
“If, on the other hand, we had refused to postpone the signing, and supposing that no other ill consequence wd. have resulted, yet, certainly, such refusal would have been more offensive to the French Minister, than our doing it without his Knowledge, & consequently without his Opposition. Our withholding from him the Knowledge of these Articles, until after they were signed, was no Breach of our Treaty with France, and, therefore, could not afford her any Ground of complaint against the United States. It was indeed a Departure from the Line of Conduct prescribed by our Instructions; but we apprehend that Congress marked out that Line for their own Sake, and not for the Sake of France. They directed us to ask and be directed by the Advice of the French Minister, because they supposed it would be for the Interest of America to receive and be governed by it; It was a Favor She asked from France, and not a Favor that she promised to, And we withheld from, France. Congress, therefore, alone have a Right to complain of that Departure. As to the Confidence which ought to subsist between Allies, we have only to remak, that as the French Minister did not think proper to consult us about his Articles, our giving him as little Trouble about ours, was perfectly equal and reciprocal” (LbC-Tr in Jean L’Air de Lamotte’s hand, APM Reel 103).
3. George Johnstone served as governor of West Florida from 1763, following Spain’s cession of the territory to Britain under the terms of the Treaty of Paris ending the Seven Years War, until 1767. In 1764, at his recommendation, the northern border was moved from the 31st parallel to “a Line drawn from the Mouth of the River Yasons [Yazoo], where it unites with the Mississippi due East to the River Apalachicola” (DNB description begins Leslie Stephen and Sidney Lee, eds., The Dictionary of National Biography, New York and London, 1885–1901; repr. Oxford, 1959–1960; 21 vols. plus supplements. description ends ; Gipson, Empire before the Revolution description begins Lawrence Henry Gipson, The British Empire before the American Revolution, Caldwell, Idaho, and New York, 1936–1970; 15 vols. description ends , 9:203). This is the same language used in the separate article (vol. 14:108–109). If the separate article did not come into force, as it did not since Britain returned West Florida to Spain under the terms of the Anglo-Spanish peace treaty, the northern boundary was to be at the 31st parallel as provided in Art. 2 of the Anglo-American preliminary peace treaty (vol. 14:103, 105).
4. This is a reference to Livingston’s 18 March 1783 letter to the president of Congress, a copy of which he had enclosed with his 25 March letter to the commissioners. There, he characterized as duplicitous the commissioners’ negotiation of the separate article and their determination to keep it secret from both France and Spain. He lamented “the resentment it discovers to Spain and the distrusts it manifests of France,” which might well offer aid and comfort to Britain and compromise the French alliance. He was “persuaded that the old maxim, ‘Honesty is the best policy,’ applies with as much force to States as to individuals.” And he believed that Congress should make clear that its past professions of fidelity to France and the alliance had not “been made . . . to mask deceit” (Wharton, Dipl. Corr. Amer. Rev. description begins The Revolutionary Diplomatic Correspondence of the United States, ed. Francis Wharton, Washington, 1889; 6 vols. description ends , 6:313–316; vol. 14:364).
5. This provision was derived from Congress’ resolution of 30 May, which Livingston enclosed in his 31 May letter to the commissioners (JCC description begins Journals of the Continental Congress, 1774–1789, ed. Worthington Chauncey Ford, Gaillard Hunt, John C. Fitzpatrick, Roscoe R. Hill, and others, Washington, 1904–1937; 34 vols. description ends , 24:372–376; vol. 14:512–514, and note 1). The commissioners had already proposed it in their 17 July letter to David Hartley (and note 4), above, and would include it as part of Art. 4 in their draft Anglo-American definitive treaty of [ante 19 July], below.
6. This refers to Art. 5 of the preliminary treaty, which referred to three categories of individuals: “real British Subjects”; “Persons resident in Districts in the Possession of his Majestys Arms, and who have not born Arms against the Said United States”; and “Persons of any other Description” (vol. 14:106). It was the last group that presumably defined the loyalists.
7. That is, 20 Jan. 1783, the day on which the Anglo-French preliminary peace treaty was signed. According to the preamble to the Anglo-American preliminary peace treaty, it would not become effective until the British and French had concluded peace. That day at Versailles, JA and Benjamin Franklin, on behalf of the United States, and Alleyne Fitzherbert, on behalf of Great Britain, signed declarations marking the suspension of arms and the cessation of hostilities between the two countries. The date of 20 Jan. for the cessation of hostilities was also given in the proclamation to that effect signed by JA, Franklin, and Jay on 20 Feb. (vol. 14:103, 200, 281, 284–285).
8. This was the language used in the proclamation of the cessation of hostilities and is derived from Arts. 1 and 22 of the Anglo-French preliminary treaty because the Anglo-American preliminary treaty did not specify the conditions governing the end of hostilities (same, p. 200, 281, 284–285).
9. Regarding the “Transportation of Negroes,” the issue had been raised in Livingston’s letter of 28 May (vol. 14:503–504), and the commissioners had indicated their concern over it in their 17 July letter to David Hartley, above. It was dealt with in Art. 7 of the draft Anglo-American definitive treaty of [ante 19 July], below.