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Franklin in the commission for peace, had arrived in Paris, the former being employed in Holland, and the latter in Spain ; but Mr. Jay joined him soon afterwards. Mr. Laurens, the other commissioner, was in England, having recently been discharged from his imprisonment in the Tower, in exchange for Lord Cornwallis. He took no part in the treaty till just at its close.
Mr. Oswald received his instructions from Lord Shelburne, and was told that his commission would speedily follow. He had held many conversations with Dr. Franklin at various times during three months, in which all the fundamental articles of a treaty had been more or less canvassed. He now renewed these conversations with the direct aim of proceeding in the negotiation. At length Dr. Franklin read to him a paper, containing what he conceived to be the elements of a treaty, adding at the same time, that he could do nothing definitively without the concurrence of his colleagues. His suggestions comprised two classes of articles, the first of which he represented as necessary, and the second as advisable for England to offer, if she desired a complete reconciliation and a lasting peace. The substance of them is here presented in the language in which they were reported by Mr. Oswald to Lord Shelburne.
“ The articles, necessary to be granted, were, First, independence, full and complete in every sense, to the Thirteen States; and all troops to be withdrawn from there. Secondly, a settlement of the boundaries of their colonies and the loyal colonies. Thirdly, a confinement of the boundaries of Canada; at least to what they were before the last act of Parliament, in 1774, if not to a still more contracted state, on an ancient footing. Fourthly, a freedom of fishing on
the Banks of Newfoundland and elsewhere, as well for fish as whales.
“ The advisable articles, or such as he would, as a friend, recommend to be offered by England, were, First, to indemnify many people, who had been ruined by towns burnt and destroyed. The whole might not exceed five or six hundred thousand pounds. I was struck at this. However, the Doctor said, though it was a large sum, yet it would not be ill bestowed, as it would conciliate the resentment of a multitude of poor sufferers, who could have no other remedy, and who, without some relief, would keep up a spirit of revenge and animosity for a long time to come against Great Britain ; whereas a voluntary offer of such reparation would diffuse a universal calm and conciliation over the whole country. Secondly, some kind of acknowledgment, in some public act of Parliament or otherwise, of our error in distressing those countries so much as we had done. A few words of that kind, the Doctor said, would do more good than people could imagine. Thirdly, colony ships and trade to be received, and have the same privileges in Britain and Ireland, as British ships and trade; British and Irish ships in the colonies to be in like manner on the same footing with their own ships. Fourthly, giving up every part of Canada.”
These terms were sent over to the ministry, and Mr. Oswald was authorized to treat, by assuming the articles, here mentioned as necessary, for the basis of his negotiation. It hence appears, that, at the outset, Dr. Franklin not only insisted on the fisheries as necessary to be granted, but the British ministers decided to yield them, although they afterwards struggled hard to have this decision reversed.
Dr. Franklin was extremely desirous to procure the
accession of Canada; he said, there could be no solid and permanent peace without it; that it would cost the British government more to keep it, than it was worth; it would be a source of future difficulties with the United States, and some day or other it must belong to them; and it was for the interest of both parties, that it should be ceded in the treaty of peace. Yet he did not think proper to urge such a cession
a necessary condition of peace, especially since Congress had forborne to instruct the commissioners on this subject, and since there was no claim on France, by the treaty of alliance, to sustain such a demand, as the pledge in that treaty was only to insure the independence of the old Thirteen Colonies, and Canada was not one of these. Mr. Oswald, in his conversations with Dr. Franklin, gave it as his opinion, that Canada should be given up to the United States, and said, that, when he mentioned it to the ministers, though they spoke cautiously, they did not express themselves as decidedly opposed to the measure. It was not pressed, however, by the American commissioners, and it would seem not to have been much dwelt upon in the subsequent progress of the negotiation.
At this stage of the business, Dr. Franklin was taken ill, and was confined for several weeks to his house. The negotiation was chiefly carried on by Mr. Oswald and Mr. Jay, though Dr. Franklin was consulted when occasion required it. Mr. Oswald at length produced his commission. It was first perused by Mr. Jay, who was so little pleased with it, that he refused to proceed with the treaty unless it should be altered. As it stood, Mr. Oswald was authorized to conclude a treaty “ with commissioners named, or to be named, by the colonies or plantations in Amer
ica,” or any assembly, body, or description of men. Nothing was said of the United States as an independent power, nor could it be inferred, that their independence was to be recognised in a formal manner. Mr. Oswald appealed to his instructions on this head, and showed one of the articles, by which independence was to be granted in the treaty. Mr. Jay still insisted that this was not enough ; that independence must be acknowledged in the first instance, and that the commission must be worded accordingly.
The form of Mr. Oswald's commission was faulty in two respects; first, the American commissioners did not represent colonies, but an independent nation; secondly, Mr. Oswald was empowered to negotiate with assemblies, or individuals of any description, which, to say the least, was unusual, and not respectful to the United States. Dr. Franklin was consulted, and he agreed with Mr. Jay, that the commission was objectionable in its form, but he had some doubts whether it was best to endanger the treaty by insisting too much on forms, especially as it was evident, that independence was to be granted, as well as all the other principal demands of the United States. In the present condition of affairs in England, there was a prospect of another change of ministry; and, if this should take place, it was extremely doubtful whether peace could be obtained on any reasonable terms, and whether the war would not be renewed. Mr. Jay saw the matter in a different light; he looked upon the form as a thing of more importance; and he labored the point for some time with Mr. Oswald, and with so much pertinacity as to gain a partial success.
As to a previous acknowledgment of independence, Mr. Jay said it ought to be declared by an act of Parliament. But Parliament was not now in session, and
would not convene for some months. He next suggested, that the King should do it by proclamation. Mr. Oswald replied, that the Enabling Act, which empowered the King to make peace, did not authorize him to issue such a proclamation; and, when Parliament should meet, they might destroy its effect, and perhaps throw every thing into confusion and defeat the treaty. When he complained to Dr. Franklin of Mr. Jay's inflexibility, and of its tendency to overthrow all that had been done, and take away all hope of continuing the negotiation, Franklin answered, “Mr. Jay is a lawyer, and may think of things that do not occur to those who are not lawyers.” Mr. Jay finally gave up this point, and said, that, “if Dr. Franklin would consent, he was willing, in place of an express and previous acknowledgment of independence, to accept of a constructive denomination of character, to be introduced in the preamble of the treaty, by only describing their constituents as the Thirteen United States of America.” Dr. Franklin agreed to this proposal, and the more readily, as Mr. Adams had some time before written to him from Holland as follows. “ In a former letter I hinted, that I thought an express acknowledgment of independence might now be insisted on; but I did not mean, that we should insist upon such an article in the treaty. If they make a treaty of peace with the United States of America, this is acknowledgment enough for me.”
The commission was accordingly sent back to London, and altered apparently without hesitation or objection. Instead of the original form, it was so worded, that Mr. Oswald was empowered to treat “with any commissioners or persons, vested with equal powers by and on the part of the Thirteen United States of America.” After all, the previous acknowledgment