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.