Part 21

Upon my first interview with Mr Alexander, he told me, that the late events would make no difference in the prospect of peace; that America had no other wish than to see a termination of this war; that no events would make them unreasonable on that subject, which sentiments likewise your letter expresses; and that no formal recognition of independence would be required. I thought this a very fair opening; but the next point, which he explained to me, seemed to be still more material towards peace, viz. that America was disposed to enter into a separate treaty with Great Britain, and their allies were disposed to consent to it. I believe that it has been the unfortunate union of common cause between America and France, which has for the last three years turned aside the wish of the people of England for peace. I verily believe (so deep is the jealousy between England and France,) that this country would fight for a straw to the last man, and the last shilling, rather than be dictated to by France. I therefore consider this as the greatest rub out of the way. I have often argued this point with you upon former occasions, having at all times foreseen, that it would be the greatest rub in the road to peace, and I have often stated it to you as an act of _justice_ due to America from her allies, not to drag her through a war of European resentments and jealousies, beyond her original views and engagements; and moreover, I think the separation of the causes in the negotiation promises much the shortest road to a general peace.

Upon Mr Alexander's opening thus much to me, I told him I would apply for the earliest opportunity of laying these matters before the Minister. Accordingly on Friday morning, December the 21st, I applied through the means of the Earl of Guilford, father to Lord North, a nobleman of a most respectable character, advanced in years, and attached by every possible tie to a son now in the most arduous situation, I therefore requested the favor through his hands, as giving me the most conciliatory access to the Minister, to whom I was preparing to make an application for peace. After the appointment was made with Lord North for Friday evening, I returned to Mr Alexander, to consider the specific manner and terms in which I should make my application. It had occurred to me, from what Mr Alexander had stated to me, that the Conciliatory Bill,[27] which I had moved in the last Parliament, on June the 27th, 1780, would still serve as a foundation to proceed upon; I therefore carried it with me.

[27] See this bill above, pp. 157, 158.

He told me, that he and you knew the sense of the bill very well, and that it would be entirely consonant to your sentiments, that I should state it to Lord North, as drawing an outline for a negotiation of peace. However, to avoid all errors, I read the bill through to him, and explained the view of each clause, viz. the style of _Provinces of North America_, a general phrase, to avoid any term denoting dependence or independence; the truce for an indefinite term; the articles of intercourse for ten years certain; to restore an amicable correspondence, and to abate animosities; the suspension of certain acts of Parliament; to avoid every possible question of dependence or independence; and to finish the work, by a ratification of each article of intercourse as agreed to, thereby to prevent all possible return of war. I compared the articles of intercourse for a short term, and their ratification into a permanent peace, to a well known mode of proceeding in the laws of England, by lease and release, from temporary to perpetual amity and peace.

Upon these grounds I took my commission from him for Lord North, viz. the question of dependence or independence _sub silentio_, a separate treaty with America, and to state the Conciliatory Bill of June, 1780, as, the outline of negotiation. I saw Lord North in the evening, and stated the foregoing propositions to him, as I have now stated them to you. After having stated the compromise _sub silentio_ and the separate treaty, I left with Lord North the copy of the bill of June, 1780, together with a paper, entitled, _Conciliatory Propositions_, as explanatory of that bill, both enclosed with this. The next morning, viz. Saturday, December the 22d, I saw Mr Alexander, and reported to him what I had stated to Lord North, and showed him a copy of the paper, entitled _Conciliatory Propositions_. He told me, that I had executed my commission perfectly to his intelligence of the matter. I should tell you, that at the conclusion of my conversation with Lord North, we both settled jointly the result thus; "I recommend to your Lordship the propositions which I have had the honor of stating to you, as _general grounds of a proposed negotiation, leading towards peace, under liberal constructions_." Lord North said in answer, "so I understand them."

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.

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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.

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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.