James Madison Papers

Report on Instructions on Peace Negotiations, [7 January 1782]

Report on Instructions on Peace Negotiations

MS (NA: PCC, No. 20, I, 75–85). The report, entirely in JM’s hand, is docketed: “Report of a comee on the instructions to the delegates of Massachusetts relative to the fisheries Delivered Jany 7, 1782 Order of the day for tuesday Jany 8. 1782. Jany 22 Referred to Mr Carroll Mr Randolph Mr Montgomery.”

Editorial Note

Urged by Conrad Alexandre Gérard, then French minister to the United States, Congress in 1779 debated at length about the terms of peace to be imposed upon Great Britain after her defeat in the war. That she must acknowledge the independence of the United States as a prerequisite to negotiating peace terms was stipulated without difficulty, but the proposed “ultimata” concerning boundaries, the navigation of the Mississippi River, and the Newfoundland fisheries revealed sharp differences of opinion within Congress, marked by a fairly definite cleavage between the New England and the southern delegates.

The “struggle over the fisheries, which was begun in early February [1779] and continued almost without cessation until the middle of August, was,” according to Edmund Cody Burnett, “one of the most protracted, as it was probably the most hotly contested parliamentary battle ever waged in Congress. Without question no other contest stirred so violently the great deeps of Congressional bile” (The Continental Congress [New York, 1941], p. 433). Before this struggle lapsed into quiescence during the first days of autumn, Congress had agreed that, although a guarantee by Great Britain of “the common right to the fisheries” was of the utmost importance and must be included in any commercial treaty made with her, this right would not be asserted “on the present occasion” as unalterably controlling the American peace commissioners. The delegates from Virginia supported this decision. Although those from New England naturally opposed it, they probably abandoned their earlier uncompromising stand because of their assurance that John Adams, one of their own number, would be elected by Congress to negotiate the treaties of peace and commerce with Great Britain. Congress further agreed in 1779 that: (1) the sine qua non concerning boundaries would omit Canada and Nova Scotia, although the peace commissioners must endeavor strenuously to gain both territories for the United States; and (2) if Spain would join the Franco-American alliance and drive Britain from East and West Florida, the United States would guarantee the future possession of the Floridas to Spain, provided that she would reciprocally guarantee to the United States “the free navigation of the river Mississippi into and from the sea.” See index to JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XV, under Boundaries of United States; Fishing rights in treaty; Florida, East, cession; Mississippi, navigation of; and Nova Scotia, cession of.

Although the terms of a peace treaty with Great Britain were not an important subject of debate in Congress during 1780, the issue of the navigation of the Mississippi was prominent throughout the autumn of that year in connection with the much-hoped-for alliance with Spain. Contrary to JM’s wishes, the Virginia General Assembly on 2 January 1781 released its delegates from the directive to insist that Spain acknowledge the right of Americans to employ that river freely, including the use of a port of deposit at the mouth. Thereupon, on 15 February, Congress modified the earlier instructions to John Jay by authorizing him to conclude a treaty with Spain, even at the cost of relinquishing the right of the United States to the unrestricted use of the Mississippi and of a free port south of 31° north latitude (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , II, 92, n. 4; 108, n. 9; 127–34; 202–4; 273; 302–3).

Informed by La Luzerne, the French minister to the United States, that Great Britain might accept as mediators the empress of Russia and the Holy Roman emperor, or either of them, Congress between May and September 1781 reconsidered the peace “ultimata” with exhausting thoroughness and joined four other men with John Adams to constitute a peace commission (n. 3, below). These debates also produced a reaffirmation that a treaty of commerce with Great Britain must acknowledge the “right” of American and French citizens, under the terms of the Franco-American Treaty of Amity and Commerce of 1778, to use the offshore fishing banks of North America. On the other hand, in spite of JM’s opposition, Congress left the matter of western boundaries largely to the discretion of the American peace commissioners, as guided by the French foreign office, and declined to designate the freedom of navigation of the Mississippi from its source to its mouth as indispensable (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , III, 133, editorial note; 148, and n. 2; 149, n. 3; 150–51; 151–52 nn.; 168, editorial note; 265, n. 2; 273–74).

Although the members of the Massachusetts General Assembly were heartened in the autumn of 1781 by the declining military fortunes of the British in the South, climaxing in the surrender of Lord Cornwallis, they were disturbed because the interests of New England were no longer solely entrusted to John Adams. At the same time, the lessened need of aid from Spain convinced JM that Congress could and should take a more positive stand on what the western boundaries of the United States must be and, above all, on the necessity of a guarantee by Great Britain in the treaty of peace, or by Spain in a treaty of alliance, of the right of Americans to navigate the entire length of the Mississippi River. Moreover, with the danger from the enemy at least temporarily reduced, the sectional and factional controversies within Congress became more acute, the attendance of its members more irregular, and the states even more laggard than before in supplying their quotas of money and troops. In a word, there was good reason to fear lest the union of states would not survive the end of the war. This union, in JM’s view, must continue at least until the attainment of peace. If Congress could agree upon the indispensable terms which Britain must accept, the need of standing firm to obtain them would help to maintain the union until the treaty provided all the states with a common territorial domain and other guarantees.

Amid these circumstances, the Massachusetts legislature on 27 October 1781 directed its delegates in Philadelphia “to Represent to Congress the importance of the Fisheries to this State, and to use their utmost influence that instructions be given to the ministers appointed by Congress for negociating a Peace, in the most pressing manner to insist, that the Free and unmolested Exercise of this right be continued and Secured to the Subjects of the United States of America, in a future settlement of Peace” (NA: PCC, No. 74, fols. 189–92). The printed journal of Congress makes no mention of a session on 17 November, but the directive, according to a note on its docket, was submitted to Congress on that day and referred to a committee comprising James Lovell (Mass.), Daniel Carroll (Md.), and JM. JM’s colleagues on the committee allotted to him the task of drafting the report. By joining the stipulations in regard to the western boundary and the Mississippi River, demanded by southerners, with the stipulation about fishing rights, demanded by New Englanders, JM sought in these instructions to reconcile sectional differences and thereby to check the ominous drift of the Union toward disintegration.

In the Ford collection in the New York Public Library is an undated manuscript, five pages in length, written by Elias Boudinot (N.J.) and docketed by him, “Proposed Instructions to Ministers of Peace.” The contents of the first paragraph, together with the many corrections and interlineations on the first three pages of the document, strongly suggest that Boudinot was preparing, or at least copying, the draft of a letter upholding the claim of the United States to the Mississippi River as its “western & North western Boundary.” Two brief passages on Boudinot’s first page, two on his third page, over half of his fourth page, and all of his fifth are identical or approximately identical in phraseology with passages in the present report. Whether JM copied from Boudinot or vice versa obviously depends upon ascertaining the exact date when Boudinot wrote his manuscript. This date has eluded the editors. Unlike JM’s, Boudinot’s committee assignments between 23 July and 9 November 1781, the period when he last attended Congress prior to the date of the present report (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VI, xlvii), had not included any bearing upon instructions to the peace commissioners. For this reason, although clearly inconclusive, the editors assume that Boudinot’s manuscript postdates the one given below.

[7 January 1782]

The Committee to whom was recommitted1 the several papers relative to the fisheries having duly considered the same & being of opinion that the best security for this object short of admitting it into the Ultimatum for peace will be a representation to his M. C. M.2 thro’ our Ministers3 for negociating peace, of its great importance to the U. S. & of the grounds upon which it is claimed & expected; & being also of opinion that a like representation touching the other claims of the U. S. excluded from the Ulti[ma]tum would have a tendency no less salutary, they have prepared instructions to the sd. Ministers on this comprehensive plan & report the same as follows for the consideration of Congress.

That the Ministers plenipotentiary for negociating a peace, or in case they should not be convened, the Minister Plenipo: at the Court of Versailles,4 be instructed to acquaint his M. C. M. that notwithstanding the occasion presented to the U. S. by the signal & various advantages gained over the Enemy, of enlarging their Ultimatum for peace, the firm reliance which Congress have on the friendship and influence of his Majesty, has determined them not to depart from their resolutions of the   day of   last   5 by which all the objects of their desires & expectations, excepting only the Independance of the U. S. & their Alliance with his M. are eventually submitted to his Councils: But6 that in order to make him more fully sensible of the extent & foundation of these desires & expectations they have thought it expedient that some observations should be made to him relative to the several objects which are most likely to fall within the compass of negociation.

One of these objects & which is intimately connected with the independance of the U. S. is the exterior boundary by which their extent is to be defined. On this occasion it is to be observed, that our contest will be with his Britanick Majesty alone.7 Under his authority the limits of these States, while in the character of Colonies, were established; to these limits the U. S. considered as independt. sovereignties, have succeeded. Whatsoever territorial rights therefore, belonged to them before the revolution, were necessarily devolved upon them at the aera of independence.

Those grounds support the assertion, that the U. S. are bounded, as they are declared to be in the instructions given to Mr. Adams on the   day of August 1779.8

As the efforts of his Britannick Majesty will be principally directed agst. the Western & N. Western boundary, the observations on this subject may be confined thereto.

The treaty of Paris in 1763 to which his M. C. M. and the British King were parties, restricted those Colonies wch. were before extended by their Charters to the Sea, to the river Mississippi.9 To this river then these States will still extend in the same manner unless by some subsequent constitutional & rightful act, their limits have been abridged.

The negociations on this head will probably assume a variety of forms. None perhaps will be more strenuously urged than those which arise from his Britannick Majesty’s proclamation on the 7th. day of October 1763, the treaty of Fort Stanwix in 1768 between him & the six nations, and the British Statute in 1774, establishing among other things the boundaries of Quebec.10

1. If it can be supposed, that the purpose of the Proclamation was to affect the boundaries of the U. S. it must be remembered to be the act of the very Prince against whom we contend; that it preceded a short time only the manifestation of those wicked & oppressive measures which gave birth to the Revolution, and that it directly interfered with the rights accruing to the Colonies by the antient & more solemn acts of his predecessors.

But by the prohibition to the Governors of the other Colonies than of Quebec, E. Florida or W. Florida, to grant warrants of survey, or pass patents, “for the present, and untill his (the Britis[h] King’s) farther pleasure sd. be known,” for any lands beyon[d] the heads or sources of any of the rivers which fall into the Atlantic ocean from the West & North West, is strongly shewn an opinion that there were lands beyond the heads of those rivers, within the grants of the Governors.11

By the prohibition too to grant warrants of survey or pass patents for any lands whatever, which “not having been ceded to or purchased by the British King were reserved to the Indians or any of them,” a restriction of territory could not have been designed by a King, who granted the Charters to the Colonies,12 knowing that they would interfere with the rights of the Indians—who has always considered a cession or purchase from the Indians, not so much the source of a title as a milder means of preventing their hostility—who since the date of the proclamation has granted through the prohibited Governors themselves, large quantities of land beyond the heads of those rivers,13 & whose own Geographer in a map describing and distinguishing the British, Spanish & French dominions in America according to the aforesaid Treaty of Paris, carries the States of Georgia, N. Carolina, S. Carolina & Virginia as far as the Mississippi.14

In a word this part of the Proclamation seems to have been intended merely to shut up the land offices, not to curtail limits, to keep the Indians in peace, not to relinquish the rights accruing under the charters, & particularly that of preemption.15

2. The Treaty of Fort Stanwix is susceptible of a similar answer by viewing it as an instrument of peace, not the conveyance of a title. For there is reason to believe, that the British King has never ratified it; and yet it is notorious that his Governors have granted lands within the Cession then made.16

If it be said that the authority to grant those lands was derived from the Treaty of Lancaster in 1744, here then is a forcible illustration of our Doctrine. For on what principle, but on account of peace, could the British King have attempted to procure a new Cession of the same Country? on the other hand, if the authority to grant those lands was not derived from the Treaty of Lancaster, it can rest on no other foundation than that of his Charters.17

3. The Quebec Act is one of the multiplied causes of our opposition & finally of the revolution. No stress therefore ought to be laid on it, even if in its operation it abridged the boundaries of the States. But the provision that nothing therein contained, relative to the boundary of the province of Quebec should in any wise affect the boundaries of any other Colony, excludes such an operation, & confirms chartered rights.18

Should G. B. retain that portion of the U. S. bordering on the Mississippi, the neighbourhood of her possessions will be imminently dangerous to our peace. Should she also retain Canada & W. Florida, or even Canada alone, by applying herself to the settlement of that Country, and pushing on her trade there with vigor, a new nursery for her marine will speed[il]y be established.

From a full confidence that the Western territory now contended for lay within the U. S. the British posts therein have been reduced by our Citizens and American government is now exercised within the same; large bounties of land have been promised to the army, and we have relied on it as an important source for discharging the debts incurred during the war.

For a considerable distance beyond the Apalachian Mountains & particularly on the Ohio American Citizens are actually settled at this day. By the surrender therefore of the W. territory to G. B. a large number of fencible men,19 men too who have not been behind any of their fellow Citizens in the struggle for liberty, would be thrown back within her power.

But a decisive objection exists against this mutilation of our Country, that the principle by which it would be limited to the distance of a Mile only from the Mississippi, would justify mutilations to an immense extent.

Another claim is the common right of the U. S. to take fish in the N. American seas & particularly on the banks of N. foundland. With respect to this object the sd. ministers are instructed to consider & contend for it as described in the instructions relative to a treaty of Commerce given to J. A on the 29th of Sepr. 1779,20 as equally desired & expected by Congress with any of the other claims not made ultimata in the instructions given to the Ministers plenipo for negociating a peace on the   day of   last,21 & are therein referred to as objects of the desires & expectations of Congress. They are also instructed to observe to his M. C. M. with respect to this claim, that it does not22 extend to any parts of the sea lying within three leagues of the shores held by G. B. or any other Nation. That under this limitation, it is conceived by Congress, a common right of taking fish cannot be denied to them without a manifest violation of the freedom of the seas, as established by the law of Nations & the dictates of reason; according to both which the use of the sea, except such parts thereof, as lye within the vicinity of the shore & are deemed appurtena[nt] thereto, is common to all nations,23 those only excepted, who have either by positive convention, or by long & silent acquiescence under exclusion, renounced that common right; that neither of these exceptions militate against the claim of the U. S. since it does not extend to the vicinity of the shore, and since they are so far from having either expressly or tacitly renounced their right, that they were prior to the war, though indeed not in the character of an independt. nation, in the constant, & even during the war, in the occasional exercise of it; that although a greater space than three leagues has in some instances been, both by public Treaties & by customs, annexed to the shore as part of the same dominion, yet as it is the present aim of the Maritime powers to circumscribe, as far as reason will justify, all exclusive pretensions to the sea,24 and as that is the distance specified in a treaty to which both G. B. & his Majesty are parties, & which relates to the very object in question,25 it was supposed that no other distance cd. in the present case, be more properly assumed; that if a greater or an indefinite distance should be alledged to be appurtenant by the law of Nations to the Shore it may be answered that the fisheries in question, even those on the banks of Newfoundland, being of so vast an extent, might with much greater reason be deemed appurtenant to the whole Continent of N. America, than to the inconsiderable portion of it held by G. B; that Congress expect with the greater assurance the concurrence of his Majesty in these ideas, since his own claim to the fisheries wd. by a contrary doctrine be suspended on26 the mere concession of G. B. instead of resting on the solid & honorable basis of the law of Nations & of right; that if G. B. cannot by virtue of her occupancy of the shore claim an exclusive use of the fisheries beyond the vicinity thereof, and a right to the common use is incident to the U. S. as a free & independent community, they cannot admit that they have no such right without renouncing an attribute of that sovereinty which they are bound as well by respect for his Majesty’s honor as for their own interests & dignity to maintain entire; that this right is no less indispensable in its exercise than it is indisputable in its principles, the inhabitants of a considerable part of the U. S. being dependent thereon both for a material proportion of their subsistance, & for the means of their commerce; and as they were in the full enjoyment of this resource prior to the revolution, the loss of it by an event from which very different expectations have been cherished, and which ought to bestow as far as possible equal advantages on all who have laboured equally for its accomplishment, could not fail to be attended with disappointment & mortifying comparisons: that from these considerations Congress have the most earnest desire as well as the most sanguine hope that his Majesty’s efforts will obtain for his Allies a stipulation on the part of G. B. not to molest them in the common use of the fisheries as above stated; or if insuperable difficulties should oppose a positive stipulation in their favor, that his Majesty will in every event find means to avoid a surrender of that common right; that whilst however this latter expedient is suggested to his Majesty it cannot escape his discernment, that it is so pregnant with dangerous consequences, that the former cannot be contended for with too much urgency & zeal.

That with respect to the confiscated property of those who have adhered to the interests of the Enemy, & which may possibly be claimed for the former owners the aforesaid Ministers are to observe to his Majesty, that these confiscations having taken place more or less in almost all the States,27 and having undergone various transfers from individual to individual, a specific restitution is absolutely impracticable; and when the vast amount of them is compared with the ravages & burdens which the war will leave behind it, an equivalent restitution wd. be little less than impracticable, that as the general usage of nations, as well as the particular law of G. B. excludes aliens from holding real & immoveable estates, the moment our national independence was assumed, the titles of all those who on or prior to that event espoused the side of the Enemy, became under strict construction, extinct: and that such as afterwards deserted to them falling under the denomination of Traytors, have forfeited not only their estates but their lives to their Country; that although it were to be admitted that the peculiarity of circumstances which distinguish the present war between the U. S. & G. B. from a war between two nations seperate & independent at its origin, affords some plea for reversing the confiscations, this consideration is far outweighed by the great value of which the Citizens of these States have, contrary to the laws of war, been despoiled by the Enemy, and the still greater losses which they have suffered from wanton destructions; in both which, those who have fled or been expelled from their Country, have been often the chief instigators & instruments, and by the first of which many of them have enriched themselves greatly beyond their losses.28

That the Ministers further observe to his Majesty that any stipulation authorizing such fugitives & exiles from their Country to return into it wd. not only be dishonorable to the Governments of these states, but so obnoxious to the people at large, and especially to such as have been the objects of their outrages, that it is the particular wish of Congress that it may be most strenuously opposed; that such a permission is the more to be dreaded as it cd. only be intended for such as are totally devoid both of honor & sensibility who alone wd. avail themselves of a privilege that wd. subject them to the indignation & resentments which they had provoked.

That as it is not improbable the subject of commerce will among others be introduced into the negociation, the Ministers be instructed to observe thereon to his M.C.M that the U.S. as a free & sovereign nation being the absolute masters as well of their Commerce as of their Government, no claim of right can, nor probably will, be pretended with respect to the former, by those who relinquish such pretension with respect to the latter; that it is the wish & the policy of the U. States to preserve their commerce as unfettered as possible with stipulations in favor of nations with which they are now unconnected, and particularly of that with which they are now at war; that this policy can not but coincide with the sentiments of his Majesty since it alone will leave to his Allies the future opportunity of manifesting their preference of his interests to those of his Enemies & rivals:29 that Congress do for these reasons most earnestly desire, expect & intreat that his Majesty will spare no efforts that may be necessary to exclude from a Treaty every article which wd. restrain the U. S. from imposin[g] on the trade of G. B. any duties, restrictions or prohibitions which may hereafter be judged expedient; Unless & so fa[r] only as, a relaxation in this point may be essentially necessary for obtaining peace, or the several objects above mentioned.30

1The docket, quoted in the headnote above, omits mention of the submission of the committee’s report to Congress on 12 December 1781, when it was “debated and re-committed” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 1166). As originally drafted by JM, the report probably began with the word “Resolved,” which is crossed out in the manuscript. The introductory paragraph is squeezed above the deleted “Resolved” at the top of the first page. JM’s use of the word “recommitted” most likely signifies that he added this preamble on some date between 12 December 1781 and 7 January 1782.

2His Most Christian Majesty King Louis XVI of France.

3John Adams, John Jay, Benjamin Franklin, Thomas Jefferson, and Henry Laurens (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , III, 154, n. 5). On 14 February 1783 Congress excused Jefferson from his assignment to proceed to France as a peace commissioner (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (16 vols. to date; Princeton, N.J., 1950——). description ends , VI, 240; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIV, 132).

4Benjamin Franklin. On a separate line immediately preceding this paragraph, JM wrote and deleted “Resolved.”

5The resolutions were those of 15 June 1781 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 651–52). That they were of much humbler tone than the present report no doubt mirrors the effect of “the signal & various advantages gained over the Enemy.” See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , III, 154, n. 3.

6The portion of this paragraph, beginning with the first italicized word and ending here, is enclosed in brackets. What the brackets connoted to the person who inserted them is unknown.

7The implication of this forthright statement is clear: differences which eventually might arise between Spain and the United States over their common boundary in the West and South were irrelevant to the peace negotiations of the United States with Great Britain. Probably the peace commissioners were also expected to infer that they must not tolerate an attempt by France to advance the territorial claims of her other ally, Spain, in opposition to those of the United States.

8For the instructions of 14 August 1779, see JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIV, 956–60.

9JM here accepts as a matter of course the right of the king, when exercising his prerogative of making treaties, to alter the boundaries of a colony as defined in a royal charter. JM apparently assumed that this right was so generally understood that he did not need to mention it when, on other occasions, he insisted that a charter was contractual in nature and hence could not be annulled or modified by the grantor except with the consent of the grantee. For this view, see JM to Randolph, 9 April 1782. Article VII of the Treaty of Paris of 10 February 1763 between France and Great Britain stated that “for the future the confines between the dominions of his Most Christian Majesty and those of his Britannic Majesty in this part of the world shall be irrevocably fixed by a line drawn along the middle of the river Mississippi from its source to the river of Iberville, and from thence by a line drawn along the middle of this river and the lakes Maurepas and Pontchartrain to the sea” (Frances Gardiner Davenport and Charles Oscar Paullin, eds., European Treaties Bearing on the History of the United States and Its Dependencies [4 vols.; Washington, 1917–37], IV, 94).

10The Royal Proclamation of 1763 created the British provinces of Quebec, East Florida, West Florida, and Grenada and defined the boundary of each. The proclamation also forbade, “for the present,” outside Quebec and the two Floridas, any further survey or purchase of, or settlement on, “any lands beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the west or northwest. The “British Statute in 1774” (Quebec Act of 22 June 1774), by extending the limits of the province of Quebec west to the Mississippi River and south to the Ohio River, traversed the alleged western boundaries of Massachusetts, New York, Connecticut, and Virginia and jeopardized the land claims of many individuals and companies resident on the eastern seaboard and in Great Britain itself (Henry Steele Commager, ed., Documents of American History [2d ed.; 2 vols. in 1; New York, 1940], I, 47–50, 74–76). Although the Six Nations of the Iroquois, in the Treaty of Fort Stanwix, concluded in February 1768 with Sir William Johnson of New York, the superintendent of Indian affairs in the northern department, again ceded their claims to all land south of the Ohio River (n. 17, below), many Virginians were offended by this assumption of jurisdiction over their own affairs and were alarmed lest the treaty foreshadow the granting of lands within the province’s western limits directly by the Crown to “outsiders” and the creation of a new colony there (Thomas Perkins Abernethy, Western Lands and the American Revolution [New York, 1937], pp. 43–46, 189, 221, 242, 363–65; Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , II, 176–78).

11This argument is vulnerable. A government is not “strongly shewn” to have possessed rightfully a field of power by virtue of a subsequent denial of that field to that government. If this were true, JM would have been obliged to admit about a decade later that, prior to the ratification of the first ten amendments, the federal government could have exercised lawfully the fields of powers denied to it by those amendments.

12See n. 9, above. The approximately accurate quotation is taken from the tenth paragraph of the Proclamation of 1763.

13JM probably had in mind sizable grants made west of the Proclamation Line by John Penn, governor of Pennsylvania; by Lord Dunmore, governor of New York (where his successor, William Tryon, also became involved) and later of Virginia; and by James Wright, governor of Georgia. The Georgia grants alone were authorized by the British government, and then only after purchase from the Indians directly in the name of the Crown (Clarence Walworth Alvord, The Mississippi Valley in British Politics [2 vols.; Cleveland, 1917], II, 113, 203–7).

14The reference is to the work of Thomas Jefferys, the British royal geographer from 1760 until his death in 1771 (Robert M. Lunny, Early Maps of North America [Newark, N.J., 1961], p. 27). His General Topography of North America and the West Indies, published in partnership with Robert Sayer in London in 1768, contained “An accurate map of North America. Describing and distinguishing the British, Spanish and French dominions on this great continent; according to the definitive treaty concluded at Paris 10 feb. 1763.” This map shows the Mississippi River as the western boundary of the southern colonies.

Subsequent editions of Thomas Jefferys’ The American Atlas were published in London by Sayer and John Bennett from 1775 to 1782, inclusive (Justin Winsor, ed., Narrative and Critical History of America [8 vols.; Boston and New York, 1884–89], V, 618). JM may have used one of these editions.

15JM means that American subjects, whether as individuals or as corporations, had a pre-emptive or prior right in law to acquire title to the public lands within their respective colonies before those lands could be offered on the same terms to anyone else. JM may have intended this appended phrase to be a subtle thrust at the land speculators in Congress whose pretensions to land within Virginia were not acknowledged by that Commonwealth.

16Although the territory ceded by the Iroquois in the treaty was west of the Proclamation Line, grants had been made within the cession between 1768 and 1775 (above, n. 13). Sir William Johnson had violated his instructions by acquiring more land from the Iroquois than the Crown desired. For this reason, the Earl of Hillsborough, who was secretary of state for the colonies and president of the Board of Trade, opposed the treaty. Late in 1769 the Privy Council nevertheless accepted the cession but rejected the article validating the Indiana Company’s purchase from the Indians (Thomas P. Abernethy, Western Lands and the American Revolution, pp. 43–44).

17By the Treaty of Lancaster (Pa.) in 1744 and that of Logstown (near Ambridge, Pa.) in 1752, the Iroquois had relinquished all claim to land south of the Ohio River. At Fort Stanwix they did so again, ignoring the protests of the dependent Delawares and Shawnees and professing to act even for the powerful and independent Cherokees (ibid., p. 34; Calendar of Virginia State Papers description begins William P. Palmer et al., eds., Calendar of Virginia State Papers and Other Manuscripts (11 vols.; Richmond, 1875–93). description ends , I, 278).

18JM’s position is unconvincing. True, the assurance mentioned by him is in the Quebec Act, but it also reaffirmed the existence of the Proclamation Line south to the Ohio River. Hence his contention had no force except in relation to the claims of states to territory south of that river and west of the Appalachians.

19Men capable of defending themselves. A “fencible” was a militiaman enlisted solely to defend his own neighborhood.

20John Adams’ instructions were adopted by Congress on 14 August 1779 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIV, 960–62).

2115 June 1781 (n. 5, above; Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , III, 154, n. 5).

22To this point in the paragraph JM had at first written: “Another object in which these States are no[t unin]terested is their common right of fishing in the [North] American seas & particularly on the banks of N. foundland. With respect to this claim of the U.S. the sd. Ministers are instructed to observe to his M. C. M. that it does not.…” It seems reasonable to conclude that New England delegates were not satisfied with this negative, halfhearted approach and insisted that JM affirm more forcibly the position of the United States with relation to the fisheries.

23In view of the stress by JM upon natural law, natural rights, the rights of nations, and the dictates of reason, he in all likelihood derived his references to international law largely, if not entirely, from Emmerich de Vattel, Le droit des gens, ou principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains (1758), an authority which he had consulted before drafting the instructions to John Jay, 17 October 1780 (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , II, 132; 135, n. 12). In the present instance Vattel’s Book I, chap. xxiii (James Brown Scott, ed.; 2 vols.; Washington, 1916), supported JM’s position upon the fisheries. Perhaps JM had also read Book II, chap. ii, sec. 3 of Hugo Grotius, De iure belli ac pacis (1625).

Also on 7 January 1782, Robert R. Livingston covered the same ground in a letter to Franklin. For Livingston’s reference to Grotius and Vattel, see Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , V, 91. The similarity between Livingston’s letter and JM’s document suggest that they had exchanged views on the subject.

24JM stated accurately the general purpose of the League of Armed Neutrality, even though its more particular concern was to preserve a maximum freedom of action at sea by neutral nations in wartime. JM’s subject, on the other hand, was the rights of every nation, and especially those of the United States, at sea in time of peace. See James Brown Scott, ed., The Armed Neutralities of 1780 and 1800: A Collection of Official Documents, Preceded by the Views of Representative Publicists (New York, 1918), pp. 273–405, passim.

25By Article V of the Treaty of Paris of 1763, the French were accorded “the liberty of fishing in the Gulf of Saint Lawrence, on condition that” they “do not exercise the said fishery but at the distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent, as those of the islands situated in the said Gulf of Saint Lawrence,” but because of the important military installation at Louisbourg, they were barred from fishing within fifteen leagues of Cape Breton Island (Frances G. Davenport and Charles O. Paullin, eds., European Treaties, IV, 94).

26Used in the sense of “dependent upon.”

27JM could have said that every state had confiscated the property of Tories (Claude Halstead Van Tyne, The Loyalists in the American Revolution [New York, 1929], pp. 194, 277–78). Parliament finally compensated some of the Loyalists to an amount totaling about $15,500,000, a sum far less than the total extent of their losses (George Bancroft, History of the United States of America, From the Discovery of the Continent [author’s last revision; 6 vols.; New York, 1887], VI, 101).

28In setting off the value of property taken from Loyalists against the value of patriots’ property unjustifiably destroyed by the enemy, Madison was reflecting a resolution of Congress on 18 October 1780, adopted for the guidance of John Adams in negotiating with Great Britain. This resolution read in part: “That with respect to those persons who have either abandoned or been banished from any of the United States, since the commencement of the war, he is to make no stipulations whatsoever for their readmittance; and as to an equivalent for their property, he may attend to propositions on that subject only on a reciprocal stipulation, that Great Britain will make full compensation for all the wanton destruction which the subjects of that nation have committed on the property of the citizens of the United States” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XVIII, 949).

29In Articles II, III, and IV of the Treaty of Amity and Commerce between France and the United States, each of the contracting parties assured the other of “most favoured” nation rights and privileges. By this, each power engaged “not to grant any particular favour to other nations in respect to commerce and navigation, which shall not immediately become common to the other party” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XI, 423). See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , III, 189, n. 6.

30Granting the accuracy of the note on the docket, this report was presented to Congress on 7 January. For the next two weeks the printed journal omits any mention of the report. The motion of William Ellery (R.I.) on 8 January, “That it is now expedient that Congress should enlarge their ultimata for concluding a treaty of peace,” presumably voiced the discontent of some of the New England delegates because the recommendations of JM did not make the right to fish on the Newfoundland Banks a sine qua non. The Ellery motion was defeated by a vote of five states to two, with only the Massachusetts and Georgia delegates solidly for it and with the delegations from New Jersey, Pennsylvania, Maryland, Virginia, and South Carolina unanimously opposed (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 11).

On 22 January Ellery again failed to have the right to fish on the Banks of Newfoundland made an indispensable provision of a treaty of peace with Great Britain, but Congress adopted a resolution, without a recorded vote, adding emphasis to the provisions of JM’s report by expressing “the most sanguine expectations that his Majesty’s [Louis XVI’s] friendship and influence will obtain for his faithful allies stipulations in their favour by which the peaceable enjoyment of their common right to take fish in the American seas, and particularly on the Banks of Newfoundland[,] and the boundaries of the United States as described in the instructions [of 14 August 1779 to John Adams, including the line of the Mississippi from its source to 31° north latitude] … may be secured to them.” At the same time, as a matter of record for the information of the delegates rather than as a directive to the peace commission, Congress agreed to Randolph’s explanation “That nothing contained in the preceding instruction shall be construed to affect any territorial dispute, at any time subsisting between the United States and an individual state or between individual states” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 44–45). Also on 22 January JM’s report was referred to a committee whose members were Daniel Carroll, Edmund Randolph, and Joseph Montgomery (Pa.) (see headnote). JM and three other delegates were added to this committee on 5 August, eleven days before its recommendations were submitted to Congress (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 481, 524 n.). The present report by JM, together with the communication of 27 October 1781 from the legislature of Massachusetts, were included among those recommendations and printed for the first time in the journal of Congress for 20 August 1782 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 471–81). See also Motion Concerning Peace Negotiations, 17 June 1782, and n. 1.

Perhaps in connection with drafting these instructions, JM made a copy of a long letter written on 15 November 1781 by Brigadier General Lachlan McIntosh of Georgia to Edward Telfair and Noble Wymberley Jones, two of the delegates in Congress from that state (LC: Madison Papers). JM docketed his transcript, “Extent & foundation of the territorial claim of Georgia stated by Genl. McIntosh Jany. 1782.” By a detailed tracing through charters, peace treaties, and royal proclamations, beginning with the charter of 1662 to the Carolina proprietors and ending with the Proclamation of 1763, McIntosh sought to demonstrate that the correct boundary between Georgia and East Florida was the St. Mary’s River and that the considerable number of people living north of 31° north latitude along the Mississippi River were, as most of them wished to be, within his state rather than in West Florida. He also stressed that Georgia’s southern frontier line was of much more than local concern, because wherever that boundary was drawn in a treaty of peace with Great Britain would fix the southern limits of the United States.

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