Upon this footing, matters rested for some days. On Sunday last,

December the 30th, I received a message from Lord North, through the

means of Lord Guilford, requesting an explanation of this point, viz.

"Who is authorised to treat on the part of America? whether you or Mr

Adams, or both jointly; and whether the propositions above stated

would be acknowledged, as general grounds of negotiation towards

peace, by the person or persons authorised to treat; because it was

necessary, before he could lay a matter of so great importance before

the Cabinet Council, that he should be entitled to say, these

propositions and general outlines come to me from responsible and

authorised persons." The moment I received the request of Lord North,

I agreed entirely with the necessity of an explanation on that head. I

had partly expected such an inquiry, and it gave me satisfaction when

it came, as I thought it the first reply towards a parley. If the

propositions had not gained some attention, it would have been of very

little importance to have inquired whence they came. As to the

caution itself, it appears to me not only prudent but indispensable.

The forms of caution in such cases are the essentials of caution. I

had determined on my own account before this message to have written

to you, that I might have received your sentiments directly from

yourself without any other intervention, that we might proceed with

caution and certainty in a matter of such infinite importance. This

message has only quickened my despatch. The two points of explanation

requested, I take to be these; whether the outlines above recited are

properly stated, always considering that they imply no further than

_general grounds of negotiation towards peace, under liberal

constructions_; and secondly, by what authorised person or persons any

answer on this subject would be accepted; in short, a requisition of

credentials preparatory to a formal answer, which is so much the more

necessary on the supposition of a favorable reception of the first

hint towards negotiation.

When I last saw Mr Alexander, viz. about four or five days ago, he had

met with some desponding impressions, as if the Ministry were

indisposed to peace, and that things would not do, &c. He did not tell

me upon what ground he had formed such apprehension; however, lest he

should have imparted any such by letter to you, I will state that

point to you, because it may have infinite ill consequences to be too

touchy on such occasions. A premature jealousy may create the very

evil it suspects. The Ministry in this country are not everything. The

sense of the people, when really expressed and exerted, would be most

prevalent. Suppose then it were a proved point, that every man in the

Ministry were in his heart adverse to peace. What then? withhold all

overtures! By no means. I should advise the very contrary in the

strongest manner. I should say, let the overtures be made so much the

more public and explicit by those who do wish for peace. It is the

unfortunate state of things, which has hitherto bound the cause of

France to any possible treaty with America, and which has thereby

thrown a national damp upon any actual public exertions to procure a

negotiation for peace with America. I have the strongest opinion, that

if it were publicly known to the people of England, that a negotiation

might be opened with America, upon the terms above specified, that all

the Ministry together, if they were ill disposed to a man, would not

venture to thwart such a measure.

But why should it be supposed, that the Ministry, to a man, are ill

disposed to a peace? Suppose them to be half and half, and the public

wish and voice of the people in favor of negotiation, it is evident on

which side the balance would incline. But why should we seek to throw

a damp prematurely upon any chance? Why presume even against any

individual? I grant, that it would be a bitter trial of humility to be

brought to a formal recognition of independence at the haughty command

of France, and I believe every part of the nation would proceed to

every extremity before they would submit to that. But if that touchy

point can be provided for, _sub silentio_, and if the proposed treaty

with America may be carried on free from control by France, let us

give the cause of peace a fair trial; at the worst we should but be

where we were if we should fail. But why should we expect to fail,

when the greatest rub is removed, by the liberty of entering

separately into a treaty? I think it a most favorable event, leading

towards peace. Give us a truce with its concomitants, and a little

time so given for cooling will have most excellent effects on both

sides. Eternal peace and conciliation may then follow.

I send this to you by the quickest despatch, that we may bring this

point to a fair issue before the meeting of Parliament. God prosper

the blessed work of peace.

I am ever yours most affectionately,

D. HARTLEY.

_P. S. January 8th, 1782._ Since writing this letter, I have seen Mr

Alexander, and shall see him from time to time to communicate with

him. I do not suppose I shall have an answer from Lord North till the

preliminary points are so settled, as to enable him to give an answer

in form. The Ministry might undoubtedly give a short negative, if they

thought proper; but I do not expect that. You may be assured, that I

have and shall continue to enforce every argument in the most

conciliatory manner to induce a negotiation. I am very sorry for Mr

A.'s confinement, on his own account, and on that of his friends, and

because probably in the future state of this business his personal

exertions may be very serviceable in the cause of peace. Every

assistance and every exertion of mine will always be most heartily

devoted to that cause. I have nothing further to add, either upon my

own reflections or from my subsequent conversations with Mr Alexander,

to what I have stated in the foregoing letter. If we once make a good

beginning upon the plan there stated, I should hope that such a

negotiation, founded on such principles, would promise fair to produce

every salutary and pacific concequence in the event.

D. H.

* * * * *

REMARKS ON THE CONCILIATORY BILL

_In the title and preamble_ of the bill, the words _Provinces of North

America_ are used as general words, neither implying dependence or

independence.

CLAUSE I. _The Truce_ is taken from the Conciliatory Act of 1778, and

is indefinite as to the proposed duration of the truce. Under this

clause it might be proposed to negotiate three points, viz. the

removal of the British troops from the Thirteen Provinces of North

America, and connectedly with this article, a stipulation for the

security of the friends of the British government. The third article

might be a stipulation, that the respective parties, during the

continuance of the truce, should not either directly or indirectly

give assistance to the enemies of each other.

CLAUSE II. _Articles of Intercourse and Pacification._ Under this

clause some arrangements might be settled, for establishing a free and

mutual intercourse, civil and commercial, between Great Britain and

the aforesaid Provinces of North America.

CLAUSE III. _Suspension of certain Acts of Parliament._ By this clause

a free communication may be kept open between the two countries,

during the negotiation for peace, without stumbling against any claim

of rights, which might draw into contest the question of dependence or

independence.

CLAUSE IV. _The Ratification by Parliament._ The object of this clause

is to consolidate peace and conciliation, step by step, as the

negotiation may proceed; and to prevent, as far as possible, any

return of war, after the first declaration of a truce. By the

operation of this clause, a temporary truce may be converted into a

perpetual and permanent peace.

CLAUSE V. _A Temporary Act._ This clause, creating a temporary act for

a specific purpose of negotiation in view, is taken from the act of

1778.

* * * * *

ROBERT R. LIVINGSTON TO B. FRANKLIN.

Philadelphia, January 7th, 1782.

Dear Sir,

As it does not appear improbable, that the humiliation and misfortunes

of Great Britain may produce the same sentiments, which a spirit of

moderation dictates to the other belligerent powers, and lead her to

concur with them in their wishes for peace, it cannot be improper to

acquaint you with the objects America most wishes to attain, and to

furnish you with the arguments on which they found their claim to

them. For such is the confidence, not only in the justice of His Most

Christian Majesty, but in his friendship, that they firmly persuade

themselves, that he will not only preserve for them their undoubted

rights, but that he will even go so far as to procure for them those

advantages they may reasonably demand, on the close of a successful

war; and I am perfectly satisfied, that the loose hints that a detail

of their sentiments may afford you, and our other Commissioners, will

be strengthened and improved by your lights in such manner, as to come

before his Majesty in the most advantageous form.

The first point of discussion will be the limits of the United States.

The instructions given Mr Adams on the ---- day of ---- last, explain

the wishes of Congress on that subject, nor can they admit of many

doubts, except so far as they relate to our southern extent. The

boundary between us and Canada being very well ascertained by grants,

charters, proclamations, and other acts of government, and more

particularly by the settlements of people, who are engaged in the same

cause with us, and who have the same rights with the rest of the

subjects of the United States.

Our western and northwestern extent will probably be contested with

some warmth, and the reasoning on that subject be deduced from general

principles, and from proclamations and treaties with the Indians.

The subject is undoubtedly intricate and delicate, yet, upon candid

investigation, I believe it will appear, that our extension to the

Mississippi is founded in justice; and that our claims are at least

such as the events of the war give us a right to insist upon. Your

situation, furnishing you amply with the various documents on which

Great Britain founded her claim to all the country east of the

Mississippi previous to the treaty of Paris, I will not trouble you

with references to them, which would at any rate be imperfect, from

the want which prevails here of books and papers. Taking it for

granted, that the King of Great Britain was entitled to that extent of

country, (which he at least cannot contravene) it only remains to

examine how far he considers it as within the limits of some of the

United States, because he can no more pretend to abridge those limits,

than claim any other right of which the United States are in

possession.

His idea of these limits is apparent from charters granted by the

crown, and from recent grants made by its representatives in several

of the States, it appears that they considered their authority to

grant lands to the westward, as coextensive with the right of Great

Britain, unless they were restricted by their interference with other

governments. Upon this principle, the servants of the crown in New

York granted land on the borders of Lake Erie, to the westward of

Niagara. And Virginia, even after the proclamation in 1763, patented

considerable tracts upon the Ohio, far beyond the Appalachian

mountains. It is true, the several governments were prohibited at

different times from granting lands beyond certain limits, but these

were clearly temporary restrictions, which the policy of maintaining a

good understanding with the natives dictated, and were always broken

through after a short period, as is evinced by the grants

abovementioned, made subsequent to the proclamation in 1763. And

indeed the proclamation itself furnishes a substantial argument of the

opinion of Britain, with respect to the right which some of the States

had to extend to the westward of the limits it prescribed, otherwise

it would not have been necessary to prohibit their governors from

granting, as their patents would, in such cases, have been invalid,

and themselves subjected to the censure of their master upon whom they

were dependent. Unless, therefore, these proclamations absolutely

destroyed the right, they must be considered as proofs of its

existence at least, and after they were issued. The slightest

examination of them shows, that they did not take away, but restrained

an existing right, and the subsequent grants by the governors evidence

that they were, as is before asserted, mere temporary restrictions.

The same reasoning applies to the treaty at Fort Stanwix, and to other

agreements taken from treaties with the Indians. Strong evidence in

our favor is also found in the map made by the King's geographer, in

which Virginia and the Carolinas are laid down as extending to the

Mississippi, shortly after the last war. Arguments may be drawn

against us by the Quebec Bill, but as this is one of the laws that

occasioned the war, to build anything upon it would be to urge one

wrong in support of another. But this matter may perhaps be seen in a

different light, and our pretensions placed upon a more extensive

basis by recurring to general principles, and asking whence Great

Britain derived her right to the waste lands in America.

Evidently, from the allegiance which a subject is supposed to carry

with him wherever he goes, even though he dislikes his constitution

and seeks one that pleases him better, upon this false principle, the

oppressed subjects of Great Britain, seeking freedom in the wilds of

America, were supposed to extend to it the sovereignty of the kingdom

they had left. The rights of the King of Great Britain then to America

were incident to his right of sovereignty over those of his subjects

that settled America, and explored the lands he claims. For the idea

of right derived from mere discovery, and the vain ceremony of taking

possession without planting and continuing that possession, is now

fully exploded. If then we admit what is necessary to our

independence, that the right of sovereignty over the people of America

is forfeited, it must follow, that all rights founded in that

sovereignty are forfeited with it; and that upon our setting up a new

sovereign in America, the rights which the first claimed as such,

devolve upon the second. Upon this principle, Great Britain is left

without a foot of land in America beyond the limits of those

governments which acknowledge her jurisdiction.

It is in vain to say, that the King of Great Britain holds these back

lands by a cession from other powers. Since those cessions were

grounded upon a prior claim, derived through the people of America,

and only served to confirm the right which they gave the King of Great

Britain while he was their sovereign, and which he loses with his

sovereignty over them. This mode of reasoning is warranted by the

practice Great Britain uniformly held of treating with the Indian

nations through their American governors, who have frequently executed

with them the most solemn acts, and sometimes extended the King's

protection to the nations who occupy the waste lands, which are the

subject of our present claim. The expense of retaining these in

friendship, almost always devolved upon the respective States, who,

till lately, particularly in New York, voted the sums necessary to

support smiths among them, and to procure the presents which were

annually made them. From hence, then, it follows, that if the King of

Great Britain has any right over the back lands in America, it must be

as King of the people of America; ceasing to be King of those people,

his right also ceases. If he has no right over the back lands, but

merely as protector of the savage nations that inhabit them, that

connexion and duty also devolve upon us, since they evidently claimed

that protection from him as King of the Colonies, and through the

governors of those Colonies, and not as sovereign of a country three

thousand miles from them. This country having chosen a new sovereign,

they may rightfully claim its protection.

There is some reason to believe, that Great Britain considered their

rights in many instances as extending no further than their right of

preemption and protection, as may be inferred from passages in the

negotiations for a peace with France in the year 1761, referred to in

the margin. This suggests a new idea, which, however, I am not

warranted by any act of Congress in mentioning, and therefore you will

only consider it as the sentiment of an individual. If the mediators

should not incline to admit our claim, but determine on restricting

our limits, either by the extent of our grants, the course of the

mountains, the sources of the rivers, or any other of those arbitrary

rules that must be sought for when solid principles are relinquished,

perhaps it would not be difficult to bring them to agree, that the

country beyond those limits belongs to the nations which inhabit it;

that it should enjoy its independence under the guarantee of France,

Spain, Great Britain, and America, and be open to the trade of those

whose lands border upon them.

This, though restrictive of our rights, would free us from the well

grounded apprehensions, that the vicinity of Great Britain and her

command of the savages would give us. They already possess Canada and

Nova Scotia; should that immense territory, which lies upon the rear

of the States, from the Gulf of St Lawrence to the Gulf of Mexico, be

acknowledged to be vested in Great Britain, it will render our

situation truly hazardous. The lands, as you know, are infinitely

better than those on the coast; they have an open communication with

the sea by the rivers St Lawrence and the Mississippi, and with each

other by those extensive inland seas with which America abounds. They

will be settled with the utmost rapidity from Europe, but more

particularly from these States. Attachment to the government, freedom

from taxes, a prospect of bettering their fortunes, and the fertility

of the soil, will invite numbers to leave us. This, co-operating with

the leaven of dissatisfaction, which will continue to work here for

many years, may produce the most dangerous effects, especially upon

the Southern States, which will, from the nature of their soil and

husbandry, be thinly settled for many years, while the lands, which

lie near them beyond the mountains, will soon be filled with a hardy

race of people inimical to them, who to their own strength will be

enabled to join that of the savages, subject to their command.

If it is an object with the maritime powers to lessen the power, and

by that means diminish the dangerous dominion that Great Britain has

in some measure usurped over the ocean, they must prevent her

possessing herself of the country in question, since, besides the

whole fur and peltry trade, that she will thereby engross, the demands

of this great country will give a new spring to her manufactures,

which, though the Floridas should be ceded to Spain, will find their

way into it by the river St Lawrence, and through the numerous lakes

and rivers which communicate with it. Add to this, that settlements

are already formed beyond the Appalachian mountains by people who

acknowledge the United States, which not only give force to our

claims, but render a relinquishment of their interest highly impolitic

and unjust. These, and a variety of other reasons, which will suggest

themselves to you and the gentlemen joined in the commission with you,

will doubtless be urged in such terms as to convince the Court of

France, that our mutual interests conspire to keep Great Britain from

any territory on this continent beyond the bounds of Canada. Should

the Floridas be ceded to Spain, she will certainly unite with you on

this point, as the security of that cession will depend upon its

success.

The _Fisheries_ will probably be another source of litigation, not

because our rights are doubtful, but because Great Britain has never

paid much attention to rights, which interfere with her views.

The arguments on which the people of America found their claim to fish

on the Banks of Newfoundland arise, first, from their having once

formed a part of the British empire, in which state they always

enjoyed, as fully as the people of Britain themselves, the right of

fishing on those Banks. They have shared in all the wars for the

extension of that right, and Britain could with no more justice have

excluded them from the enjoyment of it, (even supposing that one

nation could possess it to the exclusion of another,) while they

formed a part of that empire, than they could exclude the people of

London or Bristol. If so, the only inquiry is, how have we lost this

right. If we were tenants in common with Great Britain, while united

with her, we still continue so, unless by our own act we have

relinquished our title. Had we parted with mutual consent, we should

doubtless have made partition of our common rights by treaty. But the

oppressions of Great Britain forced us to a separation, (which must be

admitted, or we have no right to be independent) and it cannot

certainly be contended that those oppressions abridged our rights, or

gave new ones to Britain. Our rights then are not invalidated by this

separation, more particularly as we have kept up our claim from the

commencement of the war, and assigned the attempt of Great Britain to

exclude us from the fisheries as one of the causes of our recurring to

arms.

The second ground upon which we place our right to fish on the Banks

of Newfoundland, provided we do not come within such distance of the

coasts of other powers, as the law of nations allows them to

appropriate, is the right which nature gives to all mankind to use its

common benefit, so far as not to exclude others. The sea cannot in its

nature be appropriated; no nation can put its mark upon it. Though

attempts have sometimes been made to set up an empire over it, they

have been considered as unjust usurpations, and resisted as such, in

turn, by every maritime nation in Europe. The idea of such empire is

now fully exploded by the best writers.

The whale fishery in every sea, and even upon the coasts of princes,

who do not exercise it themselves, is considered as a common right,

and is enjoyed by those nations that choose to pursue it. The cod

fishery, upon the Dogger Bank, and other parts of the European seas,

is claimed exclusively by no nation. The herring fishery is carried on

daily by the Dutch on the coast of England, and if the Banks of

Newfoundland are not equally common, it is because some nations have

relinquished their rights, and others find it impossible to exercise

them, for want of harbors to receive their vessels, or shores to dry

their fish on.

When we say we are willing to exercise it under these inconveniences,

there can certainly be no further dispute about our right, and the

only remaining questions will be the distance that we ought to keep

from the shores possessed by the enemy; though, strictly speaking,

from our first principle, we have a common right in them.

This subject is treated so much at large by Grotius and Vattel, that I

do not think it necessary to detail arguments, which, though urged by

people here from their feelings, you will find much better stated

there. Give me leave however to urge some, that may arise from our

particular circumstances. All the New England States are much

interested in this point; the State of Massachusetts more

particularly; it has no staple; it does not raise its own bread; its

principal commerce consisted before the war in fish, which it supplied

to the rest of the continent in exchange for rice, flour, &c, and to

the West Indies for rum, sugar, and molasses. It shipped little to

Europe; first, because it could not fish so cheap as the people of

England; secondly, because their fish was not so well cured in

general, owing to their fishing at improper seasons, and to their

using salt which is said to be of a more harsh nature, than what the

European vessels bring out with them. Should this State and New

Hampshire, which is almost in similar circumstances, be excluded from

the fisheries, they must be reduced to great distress. It will be

impossible for them to pay for the necessaries they must receive from

abroad. They will see with pain their sister States in the full

enjoyment of the benefits, which will result from their independence,

while their own commerce is checked, and their State impoverished.

They will consider their interests as sacrificed to the happiness of

others, and can hardly forbear to foster that discontent, which may be

productive of disunion, and the most dangerous divisions.

The Diplomatic Correspondence of the American Revolution, Vol. 03 · 第 19 / 35 段