James Madison Papers

Notes on Debates, 23 December 1782

Notes on Debates

MS (LC: Madison Papers). See Notes on Debates, 4 November 1782, ed. n.

The motion to strike out the words “accruing to the use of the U.S.” was grounded on a denial of the principle that a capture & possession by the enemy of moveable property extinguished or affected the title of the original owners.1 On the other side this principle was asserted as laid down by the most approved writers, and conformable to the practice of all nations; to which was added that if a contrary doctrine were established by Congress, innumerable claims would be brought forward by those whose property had on recapture been applied to the public use. see Journal2

Letters were this day recd. from Mr. Franklin Mr. Jay & the Marquis de la Fayette.3 They were dated the 14th of Ocr. That from the first inclosed a copy of the 2d. Commison. to Mr. Oswald with sundry prelimy. articles, & distrusted the British Court.4 That from the 2d. expressed great jealousy of the French Govt., & referred to an intercepted letter from Mr. Marbois opposing the claim of the U.S. to the Fisheries.5 This despatch produced much indignation agst. the author of the intercepted letter and visible emotions in some agst. France.6 It was remarked here that our Ministers took no notice of the distinct comons. to Fitzherbt. & Oswald; that altho’ on a supposed intimacy and joined in the same comon. they [the Ministers wrote separately & breathed opposite sentiments as to the views of France.7 Mr. Livingston told me that the letter of the Ct. de Vergennes as read to him by the Chevr. Luzerne8 very delicately mentioned & complained that the American Ministers did not in the nego——ns with the British Ministers maintain the due communication with those of France.9 Mr. Livingston inferred on the whole that France was sincerely anxious for peace.10

1See Report on Property Recaptured on Land, 23 December 1782, and headnote, and n. 14. In this sentence, JM interlineated “grounded” above a canceled “meant to,” “or affected” between “extinguished” and “the,” and “title” above a canceled “claim.”

2The journal records the tallied vote by which the motion was defeated. See ibid., n. 14. Although the few delegates who supported the motion could cite, but not with complete assurance, Samuel von Pufendorf as their authority, JM and the other delegates who opposed the motion had on their side both Hugo Grotius and Emmerich de Vattel. See E[mmerich] de Vattel, The Law of Nations or the Principles of Natural Law (3 vols.; Washington, 1916), III (Charles G. Fenwick, trans.), 313–14; Hugo Grotius, De jure belli ac pacis, II (1925), 709–10, 712, 715; Samuel von Pufendorf, De jure naturae et gentium (2 vols.; London, 1934), II (C[harles] H. Oldfather and W[illiam] A. Oldfather, trans.), 1314.

After stating the general rule that “persons and property captured by the enemy are restored to their former status on coming again into the power of the Nation to which they belong,” Vattel excepted “personal property,” unless it was “recaptured immediately,” because of “the difficulty of identifying” it and of “the countless disputes which would arise from the attempt to reclaim it.” Vattel added that this exception had become “a general custom.” Even Pufendorf, although more concerned than Grotius and Vattel to have recaptured personal property returned to the owner, would oblige him “clearly” to “identify it.” All three writers agreed that recaptured slaves were the one type of personal property which, if at all possible, must be returned to their owners.

3In this sentence, JM at first wrote “Mr. F. Mr. J.” Later he interlineated “Franklin” and “Jay” above the initials without canceling them. Probably many years after writing the notes, JM added “ette” to “Fay.” In his Register of Despatches, Charles Thomson designated these three communications as “Secret” (NA: PCC, No. 185, III, 50). For this reason, their receipt is not noted in the printed journal for 23 December 1782.

4In this sentence JM interlineated the terminal clause and also “first” above a canceled “former.” For Richard Oswald’s second commission, see JM to Randolph, 17 December 1782, and n. 17. In his dispatch, Franklin doubted that “several preliminary propositions,” although Oswald had approved them, would be accepted by the court of London. These “propositions” or “articles” provided that (1) Great Britain renounce all “pretension to dominion or territory” within the boundaries described by Congress’ instructions to the American peace commissioners, except that the line between Nova Scotia and New England should “be settled by commissioners after peace”; (2) Americans should as freely fish “in the American seas” as they did “while united with Great Britain”; and (3) reciprocal “protection and privileges” in regard to “commerce, duties, &c.” should be enjoyed by the citizens or subjects of each nation in the “ports and countries” of the other nation. Franklin closed his dispatch by remarking that, although he was convinced of the sincere desire of the “court and people of England” for peace, they might change their minds with a “little turn of fortune in their favor”—hence “I shall not think a speedy peace to be depended on till I see the treaties signed” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , V, 811–12). See also Notes on Debates, 31 December 1782, and n. 2.

5JM interlineated “Govt.” and appears to have added “ois” to “Marb” many years after first writing his notes. In his brief dispatch of 13, not 14, October to Robert R. Livingston, Jay justified his distrust of “the French Govt.” by mentioning its pressure upon the American commissioners to “treat with” the Spanish ambassador at Paris, even though he “will not or can not exchange powers with me,” and previously to negotiate “with Mr. Oswald under his first commission,” even though it did not designate the American commissioners as representatives of a sovereign nation. “You shall never see my name to a bad peace,” Jay assured Livingston, “nor to one that does not secure the fishery” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , V, 809). This emphasis upon “the fishery” was occasioned by Jay’s expression of hope that his dispatch of 18 September, containing “a copy of a letter from M. Marbois to the Count de Vergennes, against our sharing in the fishery,” had been received by Livingston. The correspondence to which Jay alluded was laid before Congress on 24 December 1782. See Notes on Debates for that day, and n. 2.

6“France” occurs four times in this paragraph. In each instance JM at first wrote 16, the cipher for that country in the official code. Later he interlineated “France” above each 16 without canceling the cipher.

7In this sentence JM canceled “on” immediately after “remarked” and “different” between “wrote” and “separately.” He also interlineated “[the Ministers” between “they” and “wrote,” canceled “they” between “intimacy” and “joined,” and interlineated “and” above the cancellation. For Alleyne Fitzherbert and his commission, see Virginia Delegates to Harrison, 22 October, and n. 3; JM to Randolph, 22 October 1782, and nn. 3–9. In a dispatch of 19 December to John Adams, Livingston remarked, “I am still at a loss to account for this commission’s being directed to Mr. Oswald while Mr. Fitzherbert’s continues in force; or is that revoked?” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , VI, 155). Fitzherbert was empowered to treat with his counterparts from all of Britain’s foes—Oswald only with those from the United States.

In general, Franklin trusted France but was not convinced that Great Britain would remain steadfast in her apparent willingness to negotiate peace terms acceptable to the United States (n. 4, above); John Adams lacked Franklin’s usual confidence in the good faith of France but was generally less suspicious of the British, especially if they would agree in the treaty to an article about the fisheries pleasing to New Englanders; and John Jay was ever on the alert for machinations detrimental to the United States between France, Spain, and Great Britain, or any two of them (Samuel F. Bemis, Diplomacy of the American Revolution, pp. 177, 210–16, 220–42, passim).

8JM interlineated “the Chevr. Luzerne.” Judging from the handwriting, JM in his old age added “ivingston” after “Mr. L.”

9JM originally wrote “Am——n M——rs” and later added “erican” slantwise to “Am” and “inisters” to “M” without canceling “——n” or “——rs.” In like manner he interlineated “munication” after “com” without deleting “——n” immediately following “com.” When he first drafted his notes, he interlineated “with the British Ministers.”

The ink and handwriting appear to warrant no doubt that JM wrote this sentence as a part of his original record of 23 December, but the information conveyed by the sentence was almost surely not mentioned in Congress on that day. In a dispatch of 12 August 1782, Vergennes had directed La Luzerne to let Livingston know that Adams and Jay, contrary to their instructions of 15 June 1781 from Congress, were not keeping Versailles apprised of the outcome of their conferences with agents of the British ministry (William E. O’Donnell, Chevalier de La Luzerne, p. 234). Livingston, to whom La Luzerne formally communicated this information on 30 and 31 December, laid it before Congress the next day (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , VI, 177–82; Notes on Debates, 1 January 1783, in LC: Madison Papers). Therefore, although JM’s entry is an “aside” insofar as the proceedings of Congress on 23 December are concerned, it reveals that La Luzerne even by then had informally acquainted Livingston with Vergennes’ cause for annoyance.

10JM originally wrote only “Mr. L.” and filled in the rest of the letters of the surname later. After being informed by La Luzerne of Vergennes’ comments in his dispatches of 14 August, 7 September, and 14 October 1782, Livingston wrote to Jay on 4 January 1783, “From the general tenor of these letters I can discover nothing but an anxious desire for peace” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , VI, 176 n.–180 n., and especially 178 n.).

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