of confederation and perpetual union, wherein they declare, 'that the
style of the Confederacy should be, _the United States of America_,'
and by it they vested _in Congress_ the sole and _exclusive_ right and
power of determining on _peace_ and war, of sending and receiving
Ambassadors, and entering into _treaties_ and alliances.
"Thus becoming of right, and being in fact free, sovereign and
independent States, their representatives in Congress did on the 15th
day of June, 1781, grant a commission to certain gentlemen (of whom we
are two) _in their name_ to confer, treat, and conclude, with the
Ambassadors, Commissioners, &c. _vested with equal powers_ relating to
the re-establishment of peace, &c.
"On the 25th of July 1782, his Britannic Majesty issued a commission
under the great seal of his kingdom to Richard Oswald, reciting in the
words following, 'that whereas by an act passed in the last session of
Parliament, entitled, "An Act to enable his Majesty to conclude a
peace or truce with certain Colonies in North America," therein
mentioned, it recited, that it is essential to the _interest, welfare,
and prosperity_ of Great Britain, and the _Colonies or Plantations_ of
New Hampshire, Massachusetts Bay, &c. (naming the thirteen) that
peace, intercourse, trade, and commerce, should be restored between
them, therefore, and for a full manifestation of our earnest wish and
desire; and of that of _our Parliament_, to put an end to the
calamities of war, it is enacted, that it should and might be lawful
for us to treat, consult of, agree and conclude with any Commissioner
or Commissioners, named or to be named, _by the said Colonies or
Plantations_, or with any body or bodies, corporate or politic, or any
assembly or assemblies, _or description of men or any person
whatsoever_, a peace or truce with the said Colonies or Plantations,
_or any of them_, or any _part or parts thereof_, any law, act or
acts of Parliament, matter or thing to the contrary in anywise
notwithstanding.' The commission then proceeds to appoint and
authorise Mr Oswald to treat &c. in _the very words of the act_.
"We do not find ourselves described in this commission as the persons
with whom Mr Oswald is authorised to treat.
"Nations, particularly corporations, mercantile companies, and indeed
every private citizen, in every country, have their titles, their
styles, their firms, and their additions, which are necessary to their
being known in the law; that is to say, the law of nations requires,
that national acts shall give to every sovereign and nation its proper
political name or style, in the same manner as the municipal law of
the land will only take notice of corporations, companies, and even
private citizens by their proper names and legal descriptions.
"When the United States became one of the nations of the earth, they
published the style or name, by which they were to be known and
called, and as on the one hand they became subject to the law of
nations, so on the other they have a right to claim and enjoy its
protection, and all the privileges it affords.
"Mr Oswald's commission is a formal, national act, and no nation not
mentioned or properly described in it can consider him properly
authorised to treat with them. Neither the United States of America,
nor Commissioners appointed by _them_, are mentioned in it, and,
therefore, we _as their servants_ can have no right to treat with him.
"We are apprised the word _Colonies_ or Plantations of New Hampshire,
&c. in _North America_, convey to the reader a geographical idea of
the country intended by the commission, and of the manner of its
first settlement, but it conveys no political idea of it, except
perhaps a very false one, viz. as dependent on the British Crown; for
it is to be observed, that the words _Colonies or Plantations_ have
constantly been used in British acts of Parliament, to describe those
countries while they remained subject to that Crown, and the act holds
up that idea in a strong point of light when it declares, _that it is
essential to the interest, welfare, and prosperity of the Colonies or
Plantations_ of New Hampshire, &c. that peace, &c. should be restored,
&c. For as independent States our interests, welfare, and prosperity,
were _improper objects for the Parliamentary discussion and provision
of Great Britain_.
"The United States cannot be known, at least to their Commissioners,
by any other than _their present, proper, political name_, for in
determining whether Mr Oswald's commission be such as that we ought to
treat with him under it, we must read it with the eyes, and decide
upon it with the judgment of _American Ministers_, and not of private
individuals.
"But admitting that the studied ambiguity of this commission leaves
every reader at liberty to suppose, that we are or are not
comprehended in it, nay supposing it to be the better construction,
that we are, still in our opinion it would ill become the dignity of
Congress to treat with Mr Oswald under it.
"It is evident, that the design of the commission was, if possible, to
describe the United States, the Congress, and their Commissioners, by
such circumlocutory, equivocal, and undeterminate words and
appellations, as should with equal propriety apply to the Thirteen
States considered as British Colonies and territories, or as
independent States, to the end, that Great Britain might remain in a
capacity to say, that they either had the one or the other meaning, as
circumstances and convenience might in future dictate.
"As Congress have no doubts of their own independence, they cannot
with propriety sanctify the doubts of others, and, therefore, cannot
admit the sufficiency or decency of any commission that contains them.
"It being well known, that the United States have vested in Congress
the exclusive right to make peace, this commission, by authorising Mr
Oswald to treat with them _separately_, and even with parts of them,
and with any person or persons whatsoever, offers such open and direct
violence to the honor and prerogatives of Congress, as to be better
calculated to excite their resentment than their acquiescence. Nor can
we conceive it very decent in Great Britain to expect that Congress,
after having so long firmly and uniformly maintained the rights of
independence, should now consent to deviate from that character by
negotiating with her for peace, in any other capacity than the one in
which they have carried on the war with her.
"It seems agreed on all hands, that the commission does not
acknowledge us to be independent, and though the King of Great Britain
consents to make it the _first article_ of the proposed treaty, yet,
as neither the first nor the last article of the treaty can be of
validity till the conclusion of it, can it be reasonably expected,
that we should consent to be viewed during all that interval as
British subjects, there being no middle capacity or character between
subjection and independence? Neither Congress nor their servants, if
so inclined, have a right to suspend the independence of the United
States for a single moment, nor can the States themselves adopt such a
measure, while they remember the solemn manner in which they pledged
to each other their lives, their fortunes, and their _sacred honor_,
to support their independence.
"It gives us pleasure to find that these inferences and conclusions
from the general nature and rights of independence, stand confirmed by
the express acts and declarations of Congress on the subject, and in
whatever view these acts may be regarded by others, they must be
considered as authoritative by their servants.
"So early as the 17th of July, 1776, Congress resolved, 'that General
Washington, in refusing to receive a letter said to be sent by Lord
Howe, addressed to "George Washington, Esq." acted with a dignity
becoming his station, and, therefore, that this Congress do highly
approve the same, and _do direct_ that no letter or message be
received on any occasion whatever from the enemy by the Commander in
Chief, or others, the commanders of the American army, but such as
shall be directed to them in the characters they respectively
sustain.'
"We conceive that the reason of this resolution extends with at least
equal force to _civil_ officers, and particularly to Commissioners
appointed to treat of peace with Great Britain.
"On the 5th of September, 1776, Congress resolved, 'that General
Sullivan be requested to inform Lord Howe, that this Congress, _being
the representatives of the free and independent States of America_,
cannot with propriety send any of its members to confer with his
Lordship in their _private_ characters, but that ever desirous of
establishing peace on reasonable terms, they will send a committee of
their body to know whether he has any authority to treat with persons
_authorised by them_ for that purpose in behalf of _America_, and
what that authority is; and to hear such propositions as he shall
think fit to make respecting the same; that the President write to
General Washington and acquaint him, that it is the opinion of
Congress, no proposals for making peace between Great Britain and the
United States of America _ought to be received or attended to_, unless
the same be made in writing, and addressed to the representatives of
the said States in Congress, or _persons authorised by them_, and if
application be made to him by any of the commanders of the British
forces on that subject, that he inform them, that these United States,
who entered into the war only for the defence of their lives and
liberties, will cheerfully agree to peace on reasonable terms,
_whenever such_ shall be proposed to them in MANNER AFORESAID.'
"These resolutions were passed at a time when the United States had
formed no alliances, and when a formidable and hostile army had just
arrived to invade their country. If such, therefore, were their
sentiments, and such their resolutions at so early, so dangerous, and
doubtful a period, there certainly is reason to presume, that the
fortitude which influenced them has not been abated by the present
aspect of their affairs.
"On the 22d of November, 1777, Congress resolved, 'that all proposals
of a treaty between the King of Great Britain or any of his
Commissioners and the United States, _inconsistent with the
independence_ of the said States, or with such treaties or alliances
as may be formed under their authority, _will be rejected by
Congress_.'
"We cannot consider the present proposals to treat with us in a
character _below independence to be consistent with it_.
"Among other objections _unanimously_ made by Congress, on the 22d of
April, 1778, to certain bills of the British Parliament, then about to
be passed into laws to enable the King of Great Britain to appoint
Commissioners to treat, &c. is the following, viz.
'Because the said bill purports, that the Commissioners therein
mentioned may treat with _private individuals_, a measure highly
derogatory to _national honor_.'
"Mr Oswald's commission contains a similar clause, and, consequently,
is liable to the same objection.
"The Congress did also, on the same day, _unanimously_ declare, 'that
these United States cannot with propriety hold any conference or
treaty _with any Commissioners_ on the part of Great Britain, unless
they shall _as a preliminary thereto_, either withdraw their fleets
and armies, or else _in positive and express terms acknowledge the
independence of the said States_.' Neither of these alternatives have
as yet been complied with.
"On the 6th of June, 1778, the Congress ordered their President to
give an answer in the following words to the Commissioners appointed
under the British acts of Parliament beforementioned, viz.
'My Lord,
'I have had the honor to lay your Lordship's letter of May the 27th,
with the acts of the British Parliament enclosed, before Congress, and
I am instructed to acquaint your Lordship, that they have already
expressed their sentiments upon bills not essentially different from
those acts, in a publication of the 22d of April last.
'Your Lordship may be assured, that when the King of Great Britain
shall be seriously disposed to put an end to the unprovoked and cruel
war waged against these United States, Congress will readily attend to
such terms of peace as may consist with the _honor of independent
nations_, the interest of their constituents, and the sacred regard
they mean to pay to treaties.'
"The honor of an _independent nation_ forbids their treating in a
_subordinate_ capacity.
"On the 17th of June, 1778, Congress in another letter to the same
Commissioners, _unanimously_ join in saying;
'Nothing but an earnest desire to spare the further effusion of human
blood could have induced them to read a paper containing expressions
so disrespectful to his Most Christian Majesty, the good and great
ally of these States, or to _consider_ propositions so derogatory to
the honor of an independent nation.
'The acts of the British Parliament, the commission from your
sovereign, and your letter, suppose the people of these States to be
subjects of the Crown of Great Britain, and are founded on an _idea of
dependence_, which is utterly _inadmissible_.
'I am further directed to inform your Excellencies, that Congress are
inclined to peace, notwithstanding the unjust claims from which this
war originated, and the savage manner in which it has been conducted.
They will therefore be ready to enter _upon the consideration_ of a
treaty of peace and commerce, not inconsistent with treaties already
subsisting, _when_ the King of Great Britain shall demonstrate a
sincere disposition for that purpose. The only solid proof of this
disposition will be an explicit acknowledgment of the independence of
these States, or the withdrawing his fleets and armies.'
"On the 11th of July, 1778, the British Commissioners again
endeavored to prevail upon Congress to treat with them on the
humiliating idea of dependence. And on the 18th day of the same month,
Congress came to the following resolution, viz.
'Whereas Congress, in a letter to the British Commissioners of the
17th of June last, did declare that they would be ready to _enter into
the consideration_ of a treaty of peace and commerce not inconsistent
with treaties already subsisting, _when_ the King of Great Britain
should demonstrate a sincere disposition for that purpose, and that
the only solid proof of this disposition would be an _explicit
acknowledgment of the independence_ of these States, or the
withdrawing his fleets and armies; and whereas neither of these
alternatives have been complied with, therefore resolved, that no
answer be given to the letter of the 11th instant from the British
Commissioners.'
"We find Congress still adhering to the same resolutions and
principles, and in pursuance of them lately directing General
Washington to refuse Sir Guy Carleton's request of a passport for one
of his family to carry despatches from him to Congress. The late
resolutions of the different States on that occasion show how exactly
the sense of the people at large corresponds with that of their
representatives in Congress on these important points.
"To our knowledge, there is not a single instance in which Congress
have derogated from the practice and conduct of an independent nation.
All their commissions, as well _civil_ as _military_, are and always
have been in that style. They have treated with France and the
States-General of the United Provinces, and those powers have treated
with them on an equal footing. What right, therefore, can Britain have
to demand, that we should treat in a different manner with her? Or
with what propriety can we pay marks of respect and reverence to our
enemies, which we never have paid to our friends; friends too, who are
at least equal to her in power and consideration; nor can we forbear
observing, that the second article of our treaty of alliance with his
Most Christian Majesty declares, 'That the essential and direct end of
the present defensive alliance is, to maintain effectually the
_liberty, sovereignty, and independence, absolute and unlimited_, of
the said United States, as well in matters of _government_ as of
commerce.'
"Hence it appears, that not only the regard due to our own dignity,
but also to the dignity of our great ally, and the faith of treaties,
forbid our receding in the least from the rights of _that sovereignty
and independence_, the support of which forms the _direct end_ of our
alliance.
"But although the United States as an independent nation can regard
Great Britain in no other light, than they would any other Kingdom or
State with whom they may be at war, yet we can easily perceive that
Great Britain has stronger objections than other nations can have to
treating with us as _independent_. But these objections, however
strong, are more proper subjects for their deliberations whom they
affect, than for ours, whom they do not respect. Britain may amuse
herself with, and therefore be embarrassed by doubts of our title to
independence, but we have no such doubts, and therefore cannot be
perplexed or influenced by them.
"Other nations owe their origin to causes similar to those which gave
birth to ours, and it may not be useless to inquire how they conducted
themselves under similar circumstances.
"The tyranny of Philip II of Spain made his subjects in the Low
Countries declare themselves independent; a long and cruel war ensued,
which was suspended by a truce for twelve years, and afterwards
concluded by a definitive treaty of peace.
"History bears honorable testimony to the wisdom and fortitude of that
nation during that interval, and we think the following detail is so
interesting, and so applicable to the case of our country in general,
and particularly to the point in question, that we cannot forbear
requesting your Excellency to peruse it.
"On the 26th of July, 1581, the United Provinces, by a formal act,
declared that Philip II had forfeited his right to the sovereignty of
those Provinces, and that consequently they were independent.
"On the last of June, 1584, the King of France sent an Ambassador (le
Sieur Pruneaul) to Holland, and he in writing represented to the
States assembled at Delft, that his Majesty had understood that they
desired to treat with him, and that he had thought proper to inform
them, that they should let him know on what terms they proposed to do
it, with many reasons to induce the Provinces to come into such
treaty.
"Queen Elizabeth did nearly the same thing by her letter of the last
of October, 1584, which she sent to her Ambassador _Davidson_.
"The Deputies of the States soon after, by their order, returned
thanks to the Queen and informed her, that they had resolved to accept
the King of France for Prince of the country in the same manner as
Charles V had been, but on condition to retain their rights and
privileges.
"On the 3d of January, 1585, the States despatched Deputies to make
this offer to the King of France. Spain remonstrated against their
being _admitted to an audience_, calling them rebels, &c.
"To this remonstrance the King of France gave an answer, which does
the highest honor to his magnanimity.
"On the 13th of February, 1585, the deputies had an audience of the
King, and afterwards of the Queen Mother.
"On the 8th of March, 1585, the King gave for answer to the Deputies,
that he could not at present accept their offer nor assist them;
complained greatly of the violence done him by the Spaniards and
Guises, and desired them, to provide for their own defence, until such
time as he should be in quiet with his own subjects, and promised to
recommend them to the Queen of England.
"On the 6th of June, 1585, the States-General resolved to transfer the
sovereignty to the Queen of England, on lawful and reasonable
conditions, or to treat with her to take them under her protection, or
to obtain more aid and assistance from her.
"On the 9th of July, 1585, they had an audience of the Queen at
Greenwich, and offered to her the sovereignty, &c.
"The Queen declined to accept the sovereignty or undertake the
perpetual protection of the United Provinces, but on the 10th of
August, 1585, she entered into a formal treaty with them to afford
aid, &c.
"On the 16th of October, 1587, the States made a declaration to their
Governor Leicester on the subject of some differences between them, in
which they say, 'And as by divers acts, and particularly by a certain
letter, which he wrote on the 10th of July to his secretary Junius,
(as is said) the authority of these States is drawn into doubt; they
think it proper to make a more ample declaration, containing a
deduction of the rights of the States, which they are bound by oath to
maintain. _For in case they had not been well founded in the
sovereignty of the Provinces, they could not have deposed the King of
Spain, nor have defended themselves against his power. Nor would they
have been able to treat with their Majesties of France and England_,
nor to have transferred the government to your Excellency,' &c. &c.
"On the 3d of September, 1587, the Earl of Leicester by order of the
Queen intimated to them the propriety of negotiating for peace, for it
seems the King of Denmark had privately sounded the King of Spain on
that subject.
"The States answered, 'That they had never given any such commission
to the King of Denmark, nor ever thought of it; but on the contrary,
they had observed to the Earl of Leicester, in the year 1586, on his
leaving Holland, and on his speaking to them about making peace, that
there was _nothing so dangerous and injurious in their condition as to
speak or treat of peace_, and that it was one of the _old finesses of
Spain_; that neither a long war, the damages suffered, nor force, nor
the unexpected deaths of their chiefs had been able to hinder their
doing their duty, nor make them recede one step from that foundation
of constancy on which they were fixed; but that seeing the honorable
weapons which were left them, viz. firmness and resolution, they were
sufficiently powerful to surmount their difficulties, in the same
manner as the virtue of the Romans had made them triumph over
Carthage.' They also reminded the Earl, that by pretext of treating of
peace on a former occasion, they had lost Artois, Hainault, and other
countries. That the treaties at Ghent and Bruges, which were prior to
their independence, had cost the lives of more than a hundred thousand
persons; that negligence and false security were always the
consequences of such negotiations.
"On the 30th of October, 1588, the Queen again proposed their entering
into negotiations for peace, and they again refused.
"In 1590 and 1591, the Emperor endeavored to persuade the United
Provinces to enter into negotiations by the mediation of his good
offices for a _reconciliation_ with the King of Spain. And on the 7th
of April, 1592, they gave a formal answer to the Emperor, containing
their reasons for declining his proposal; on this occasion they struck
a medal representing a Spaniard offering peace to a Zealander, who
points to a snake in the grass, with these words, '_latet anguis in
herba_.'
"On the 6th of May, 1594, the Archduke of Austria sent a letter to the
States on the same subject, and received the like answer, accompanied
with a full state of their reasons for it.
"In the same year the United Provinces sent Ambassadors to Denmark,
and received others from King James of Scotland, who desired them to
send some persons on their behalf to assist at the baptism of his son,
and to renew ancient treaties, &c.
"On the 31st of October, 1596, the King of France entered into a
treaty of alliance with the United Provinces against Spain.
"On the 9th of August, 1597, the Emperor by his Ambassador, then at
the Hague, proposed to the States to treat of peace. They refused,
_alleging that they had been lawfully separated from the dominion of
the King of Spain, and had formed alliances with England, France, &c._