David Hartley to the American Peace Commissioners: Memorandum
D: Massachusetts Historical Society; copy: Public Record Office
David Hartley arrived in Paris on April 24. The following day he called on the individual American peace commissioners and found them eager to arrange for the opening of British and American ports to each other’s trade and to conclude as quickly as possible a definitive treaty of peace.6 On April 26 he went to Versailles, accompanied by Franklin, and informed Vergennes of his appointment as British minister plenipotentiary with authority to negotiate a final peace treaty. Vergennes reportedly turned to Franklin and said pointedly, “Il faut que nous finissions tous ensemble.”
On the morning of April 27 Hartley met with the Americans to exchange credentials and begin negotiations. They were furious to discover that Hartley’s “credentials” consisted only of his April 18 instructions from the king. They refused to negotiate until he produced a commission under the great seal with full powers equal to their own, including the powers to conclude and ratify a peace treaty.7 That day Hartley wrote to Fox requesting such powers. In the meantime he left with the commissioners two papers, copies of which he had given to Fox before leaving England. One was the proposed supplemental treaty he had sent Franklin on March 31 (above). The other is the present memorandum relating to it. The following day, evidently responding to Hartley’s suggestion of an interim agreement, the commissioners informed him that they would give him a proposal that he could submit at the same time he requested his commission. They presented him with their proposed articles on April 29 (below).8
[before April 27, 1783]
General Memorandums relating to a proposed Supplemental treaty between Great Britain & the American States for the removal of the Troops and for opening the Ports without delay
The original Motive of proposing an intermediate & Supplemental treaty between the Provisional Articles and the definitive treaty proposed to be concluded between G. Bn. & the American States was to bring forward the intermediate connexion & correspondence between them, into a similar Situation to that of G. Bn. and France, during the period which may intervene between their preliminaries and their Definitive Treaty. The words in the preamble of the provisional Articles9 relating to the proposed final treaty of peace, viz but which Treaty is not to be concluded until terms of Peace shall be agreed upon between G. Bn. & France may admitt of Ambiguity viz. whether alluding to the definitive treaty, or to the settlement of preliminaries between G. Bn. & France as it is [in]1 consequence of those Preliminaries, that all the parties have laid down their Arms by common consent. This latter is the interpretation which G. Bn. and the American States will put upon it, with the fullest grounds of justice, because the War is terminated by the provisional treaty in which the independence of the united States is formally assured and all parties have by formal consent agreed to lay down their Arms. And therefore the treaty of Alliance between France and the united States is accomplished and terminated.2
There is not the least reason to suppose that France would contend for any other interpretation. But in any case justice requires that all parties should be put upon similar and equal footings, For this reason the American States have a just right to Negotiate for the removal of the British Troops out of the heart of their country without delay and both G. Bn. and the American States are equally interested in an immediate revival of intercourse by Mutually opening their Ports to each other. When the Troops shall be removed and the intercourse revived, G. Bn. & America will be restored respectively to a similar repose of Situation, as that which subsists between France and G. Bn. since the signature of the Preliminary Articles between them. When this Supplemental treaty shall be settled for the removal of the Troops and for opening the Ports, which certainly may be settled in a few days; The two Parties will then proceed to the conclusion of the definitive treaty, All three Parties viz. G. Bn. France & the American States being then brought upon one equal footing & level together.
I have underlined the words extracted out of the 8th. Article of the treaty between France and the American States, upon which the Argument turns & by which I contend that the War is now terminated, according to the just sense & terms of that treaty.— The 8th. Article at full length runs thus— “Neither of the two parties shall conclude either truce or Peace with G. Bn. without the formal consent of the other first obtained, & they Mutually engage not to lay down their Arms untill the independence of the united States shall have been formally or tacitly assured by the treaty or treaties that shall terminate the war.”3
As to the removal of the Troops from America it is to be observed that the Stipulation in the 7th. Provisional Article4 on this point is not to take place till after the Ratification of the treaty in America, therefore a stipulation for their immediate removal with all convenient Dispatch is the most conciliatory Pledge of Good Dispositions towards America that can be given. The safe and speedy execution of such a Measure as the removal of a large Army consisting of various Nations and complicated with various civil as well as Military interests, which are too obvious to require enlargement, calls for the most consummate prudence & circumspection. Confidence therefore is necessary in such a case & the present Ministers of G. Bn. are entitled to that confidence for having come into the proposed Measure of removal without the least reluctance.
It has been proposed in support of the Stipulation expressed in words which if they came from suspicious Persons might ad-mitt of some latitude (viz. the terms convenient dispatch) that a Public Declaration by a letter or some such Mode from the highest authority should be made that those words should not be construd beyond reasonable and necessary prudence, on the other hand it has been Proposed that the Troops should be removed to Long Island or Staten Island & that Congress should assist the Commander in Chief hiring Transports in America to facilitate & to expedite the removal of the Troops.5 After so unequivocal a Measure on the British part as the restoration of New York to the Inhabitants and the retirement of the Troops to one of the Islands, the Troops will be considered as in a State of Amity and hospitality. And it may be expected that all conveniences for their Voyage will be chearfully supplied to them. The restoration of the Port of New York to its Native Owners will of course be the token of throwing open all the Ports on both sides for the restoration of Mutual intercourse and Commerce. All further Prosecutions of the Loyalists which by the present State of the Provisional Articles are to continue in course till the definitive treaty should be immediately and for ever Abated. This condition should go hand in hand with the removal of the Troops. The Mutual release of all Prisoners as an Article of reciprocity cannot possibly meet with any difficulty or obstruction. In this State of Amicable Intelligence the foundation of future and perpetual conciliation may be laid. We may proceed to the second immediate & concurrent proposition viz. the opening the Ports on each side for intercourse and commerce. These two points viz. The removal of the Troops and the opening of the Ports are the two proposed objects of the Supplemental treaty.
The object of any temporary and provisional treaty of Commerce between G. Bn. & the American States would be simply to open the ports upon certain specified & known Conditions from which as I may say We may take our departure and which in the course & progress of things may be corrected and adjusted in such manner as the necessity or prudence of circumstances and the Dispositions of the respective parties may point out. But by no means should we enter previously into the detail of any System of commercial arrangements. If once we get into such a system of embarrassment we shall never get clearly into daylight again, or at best not for a great length of time, Regulations some of prudence some of jealousy, some of clashing interests, Many of extreme political intricacy &c &c. would employ the discussion of many Years, and if the Ports between Great Britain & America were to continue during that period obstructed or Shut, the course of the commerce itself would burst its way into some other & foreign channel, and it would probably so happen, in the end, that the two Nations of Great Britain & the united states of N. America, altho mutually possessed of the most substantial objects of commerce, the one towards the other, might nevertheless have the least proportion of direct intercourse between themselves, for all the great objects of National commerce Manufactures or Navigation.
Then let the ports be opened first and let any Regulations follow in order as the necessity or prudence of each particular case may require. It would not signify very much from what point you take your departure provided that point be Specified & Known. Because if any impracticability should occur or any material deviation from Principles of general justice or of reciprocity, arising from the great change of circumstances by the War, each particular case may be immediately provided for, as it arises, by some Specific regulation. In the mean while the ports may generally be open and the great objects of commerce such as Cloth Hardware lumber & provisions &c &c will be free and unimpeded in their important Movements, instead of the whole Trade being suppressed untill the last punctilio can be settled.
The case at present arising between Great Britain & the American States is totally novel and such as never has existed after the termination of any war between other Nations. As soon as preliminaries are signed by G. Britain with any independent states such as Spain France or Holland the course of mutual commerce emerges upon the same terms and conditions as were existing antecedent to the war. The Case between Great Bn. & the American States is very different because the American united states from being a dependent Nation before the War emerge an independent nation after the War. The basis therefore of any Provisional treaty between Great Britain & the American states should be simply to arrange such points as would emerge after the War impracticable and discordant to their newly established Independence, and to leave all others as much as possible untoucht. For instance that instrumental Regulations such as Papers bonds certificates & all other documents should be put between G. Bn. & the united States upon the same footing as between G. Bn. & any other independent Nation but that all duties rights privileges & all pecuniary considerations should emerge into action & effect as before the war. By these means the ports will be immediately & mutually opened upon specified & known conditions; And if the legislature of either Country thinks proper to introduce on its own part any new condition or regulation that will not shut the ports again generally but only operate according to the extent of the case on which side soever any novel condition should arise the other will likewise be at Liberty to make any corresponding regulation as between independent Nations. The great object is to open the ports between G Bn. & the American states immediately upon the Signature of preliminaries of peace as between France & Great Britain. By the proposition above stated GB. & France, & G.Bn. & the American states respectively on the subject of intercourse of commerce would emerge again after the war into situations relatively similar to their situations before the war.
[In David Hartley’s hand:] Memorandums upon opening the ports April 1783
6. Hartley’s instructions from Fox and his April 18 instructions from the king (which he showed the commissioners; see below) are discussed in annotation of Fox to BF, April 19. The information in this headnote, unless otherwise specified, comes from Hartley to Fox, April 27, 1783 (Giunta, Emerging Nation, II, 93–4).
7. The king’s April 18 instructions came under his own privy seal. Hartley was “to treat with the said [American] Ministers, for the Purpose of concluding a Definitive Treaty of Peace,” and was to report regularly to Fox in order to receive further instructions: Giunta, Emerging Nation, II, 91–2; Butterfield, John Adams Diary, III, 112.
8. See JA and Jay to BF, April 28, and the commissioners’ three proposed articles, April 29.
9. The preamble to the provisional peace agreement of Nov. 30, 1782 (XXXVIII, 382).
1. Word supplied from the copy.
2. Hartley’s assumption was unwarranted: XXXVII, 335n.
3. XXV, 589.
4. Of the Nov. 30 agreement (XXXVIII, 386).
5. At least one of the proposals was made by Henry Laurens, who suggested to Fox that some of the British troops be removed to Long Island or Staten Island: Laurens to BF, April 4 (above), and to Livingston, April 5 (Laurens Papers, XVI, 176). On April 10 Fox wrote to inform Hartley that the king had authorized Hartley “to give the strongest Assurances, that it is his Majesty’s royal intention to give orders that the said removal [of the British Army from New York] shall be effected with as much dispatch as the nature of so great & difficult a business will admitt.” Giunta, Emerging Nation, I, 817–18.