Part 22

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.

An idea has also gone forth, and it is fomented by the disaffected, that France wishes, from interested views, to monopolise the fisheries; or, at least to exclude all other competitors but Great Britain. Those, who have attended to the disinterested conduct of France during the war, oppose to this sentiment the honor and good faith of their ally, the little interest that he can have in excluding a people from a right, which would not interfere with his, since France does little more than supply herself; and the New England fishery, for the most part, only supplies the continent and islands of America. They see the care with which France has endeavored to cultivate a good understanding between that Kingdom and these States, and they are persuaded so inconsiderable an object will not be put in competition with the harmony, which ought to subsist between them, or administer food to those unworthy jealousies. And so much does this sentiment prevail in Congress, that their prospects have not induced them to alter your instructions; more particularly as they have received through the Minister of France assurances, that his Majesty was pleased with the proof Congress had given him of their confidence, and that he would in no event make any sacrifices of their essential interests, which necessity should not compel him to do; that he had no reason to apprehend from the events of the war, that such necessity would exist. These events have become so much more favorable since the date of the letter, which contained these assurances, that Congress persuade themselves his Majesty will not be driven to make sacrifices equally painful to him and injurious to us; but that, as we owe our success in war to his magnanimity and generosity, we may be equally indebted to his justice and firmness for an honorable peace.

It is not improbable, that Great Britain will endeavor to make some stipulations in favor of their American partisans, who have been banished the country, or whose property has been forfeited. You will doubtless be sensible of the inconvenience and danger, to which their return will subject us, and the injustice of restoring to them what they have so justly forfeited; while no compensation is made to us for the loss of property, and the calamities they have occasioned.

There can be little doubt, that every society may rightfully banish from among them those, who aim at its subversion, and forfeit the property, which they can only be entitled to by the laws, and under the protection of the society, which they attempt to destroy. Without troubling you, therefore, on the point of right, I will just mention a few of the consequences that would result from a stipulation in their favor.

In the first place, it will excite general dissatisfaction and tumults. They are considered here as the authors of the war. Those who have lost relations and friends by it, those who have been insulted by them while starving in prisons and prison-ships, those who have been robbed and plundered, or who have had their houses burned and their families ill treated by them, will, in despite of all law, or treaties, avenge themselves, if the real or supposed authors of these calamities ever put themselves in their power; nor will the government be able to prevent what the feeling of the body of the people will justify.

Should they be permitted to reside among us, they will neglect no means to injure and subvert our constitution and government, and to sow divisions among us in order to pave the way for the introduction of the old system. They will be dangerous partisans of the enemy, equally unfriendly to France and to us, and will show themselves such upon every occasion. To restore their property in many instances is now become impossible. It has been sold from hand to hand; the money arising from it has been sunk by depreciation in the public treasury. To raise the value by taxes, or to wrest the lands from the hands of the proprietors, is equally unjust and impossible. Many of the very people, who would demand the restitution, have grown rich by the spoil and plunder of this country. Many others, who were beggars at the beginning of this war, owe their present affluence to the same cause.

So that at least the account between the two nations should be liquidated, before any claim can be set up by the aggressors. How far it will be possible to obtain a compensation for the injuries wantonly done by the enemy, you will be best able to judge; be assured that it is anxiously desired.

Give me leave to mention to you the necessity of stipulating for the safe delivery of all records, and other papers of a public and private nature, which the enemy have possessed themselves of; particularly of the records of New York, which Mr Tryon sent to England; and the private papers of many gentlemen of the law in different parts of the continent, by which the rights of individuals may be materially affected.

Thus, Sir, I have touched upon the principal points, that America wishes to attain in the peace, which must end this bloody war. Perhaps in so doing I have given both you and myself unnecessary trouble, since I have urged nothing but what your own knowledge of the country, and that of the other gentlemen in the commission, would have suggested to you. However, conceiving that circumstances might render it necessary for you to declare, that you spoke nothing more than the prevailing sentiments of your Court, this letter will serve to vouch for the assertion.

Should the Floridas be ceded to Spain, as there is nothing Congress have more at heart than to maintain that friendly intercourse with them, which this revolution has happily begun, it will be essential to fix their limits precisely, for which purpose the instructions to Mr Adams will serve as your directions.

Affairs here are in the same state that they were when I last wrote, except that the enemy in South Carolina have called in all their outposts, and shut themselves up in Charleston, where they will be closely invested when General St Clair joins, which must have happened about the last of December. The brilliant expedition to St Eustatia does the highest honor to the Marquis de Bouillé and the French nation. I flatter myself that it will be of singular use to Mr Adam's negotiations.

I have the honor to be, dear Sir, &c. &c.

ROBERT R. LIVINGSTON.

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TO DAVID HARTLEY.

Passy, January 15th, 1782.

Dear Sir,

I received a few days since your favor of the 2d instant, in which you tell me, that Mr Alexander had informed you, "America was disposed to enter into a separate treaty with Great Britain." I am persuaded, that your strong desire for peace has misled you, and occasioned your greatly misunderstanding Mr Alexander; as I think it scarce possible he should have asserted a thing _so utterly void of foundation_. I remember that you have, as you say, often urged this on former occasions, and that it always gave me more disgust than my friendship for you permitted me to express. But since you have now gone so far as to carry such a proposition to Lord North, as arising from us, it is necessary that I should be explicit with you, and tell you plainly, that I never had such an idea, and I believe there is not a man in America, a few _English tories_ excepted, that would not spurn at the thought of deserting a noble and generous friend, for the sake of a truce with an unjust and cruel enemy.

I have again read over your Conciliatory Bill, with the manuscript propositions that accompany it, and am concerned to find, that one cannot give vent to a simple wish for peace, a mere sentiment of humanity, without having it interpreted as _a disposition to submit to any base conditions_ that may be offered us, rather than continue the war; for, on no other supposition could you propose to us a truce of ten years, during which we are to engage not to assist France, while you continue the war with her. A truce too, wherein nothing is to be mentioned that may weaken your pretensions to dominion over us, which you may therefore resume at the end of the term, or at pleasure; when we should have so covered ourselves with infamy, by our treachery to our first friend, as that no other nation can ever after be disposed to assist us, however cruelly you might think fit to treat us. Believe me, my dear friend, America has too much understanding, and is too sensible of the value of the world's good opinion, to forfeit it all by such perfidy. The Congress will never instruct their Commissioners to obtain a peace on such ignominious terms; and though there can be but few things in which I should venture to disobey their orders, yet, if it were possible for them to give me such an order as this, I should certainly refuse to act; I should instantly renounce their commission, and banish myself forever from so infamous a country.

We are a little ambitious too of your esteem; and as I think we have acquired some share of it, by our manner of making war with you, I trust we shall not hazard the loss of it, by consenting meanly to a dishonorable peace.

Lord North was wise in demanding of you some authorised acknowledgment of the proposition from authorised persons. He justly thought it too improbable to be relied on, so as to lay it before the Privy Council. You can now inform him, that the whole has been a mistake, and that no such proposition as that of a separate peace has been, is, or is ever likely to be made by me; and I believe by no other authorised person whatever in behalf of America. You may further, if you please, inform his Lordship, that Mr Adams, Mr Laurens, Mr Jay, and myself, have long since been empowered, by a special commission, to treat of peace whenever a negotiation shall be opened for that purpose; but it must always be understood, that this is to be in conjunction with our allies, conformably to the solemn treaties made with them.

You have, my dear friend, a strong desire to promote peace, and it is a most laudable and virtuous desire. Permit me then to wish, that you would, in order to succeed as a mediator, avoid such invidious expressions as may have an effect in preventing your purpose. You tell me that no stipulation for our independence must be in the treaty, because you "verily believe, so deep is the jealousy between England and France, that England would fight for a straw, to the last man and the last shilling, rather than be _dictated to_ by France." And again, that, "the nation would proceed to every extremity, rather than be brought to a formal recognition of independence at the _haughty command_ of France." My dear Sir, if every proposition of terms for peace, that may be made by one of the parties at war, is to be called and considered by the other as _dictating_, and a _haughty command_, and for that reason rejected, with a resolution of fighting to the last man rather than agree to it, you see that in such case no treaty of peace is possible.

In fact we began the war for independence on your government, which we found tyrannical, and this before France had anything to do with our affairs; the article in our treaty whereby the "two parties engage, that neither of them shall conclude either truce or peace with Great Britain, without the formal consent of the other first obtained; and mutually engage, not to lay down their arms until the independence of the United States shall have been formally or _tacitly_ assured, by the treaty or treaties, that shall terminate the war," was an article inserted at our instance, being in our favor. And you see, by the article itself, that your great difficulty may be easily got over, as a formal acknowledgment of our independence is not made necessary. But we hope by God's help to enjoy it; and I suppose we shall fight for it as long as we are able.

I do not make any remarks upon the other propositions, because I think that unless they were made by authority, the discussion of them is unnecessary and may be inconvenient. The supposition of our being disposed to make a separate peace I could not be silent upon, as it materially affected our reputation and its essential interests. If I have been a little warm on that offensive point, reflect on your repeatedly urging it, and endeavor to excuse me.

Whatever may be the fate of our poor countries, let you and me die as we have lived, in peace with each other.

Assuredly I continue, with great and sincere esteem, my dear friend, yours most affectionately,

B. FRANKLIN.

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TO THE COUNT DE VERGENNES.

Passy, January 18th, 1782.

Sir,

I received the letter your Excellency did me the honor of writing to me this day enclosing a Memorial,[28] which relates to the interests of some subjects of the Emperor, residing at Ostend, who allege that a ship of theirs has been taken by an American privateer, and carried into Boston, on pretence that the property was English, &c. I shall immediately transmit the Memorial to Congress, as desired. But there being Courts of Admiralty established in each of the United States, I conceive, that the regular steps to be taken by the complainants would be an application for justice to those Courts by some person on the spot, duly authorised by them as their agents, and in case the judgment of the Court is not satisfactory, that then they appeal to the Congress, which cannot well take cognisance of such matters in the first instance.

[28] See this Memorial in Franklin's Works, Vol. V p. 122

The merchants of Ostend may possibly not have as yet correspondents established in all the States, but any merchant of credit in the country would transact such business on receiving their request, with the proper power of attorney; or if His Imperial Majesty should think fit to appoint a Consul General to reside in those States, such an officer might at all times assist his compatriots with his counsels and protection, in any affairs that they might have in that country. I am the more particular in mentioning this to your Excellency, because I apprehend these cases may hereafter be frequent, and if the complaints are to be addressed to you and me, we are likely to have a great deal of trouble, as I am informed that it is become a daily practice for outward bound English ships to put into Ostend, make a formal pretended sale of ship and cargo to a merchant of the place, who furnishes imperial papers for the voyage under his own name, and receives a certain sum per cent for the operation.

This is said to be a branch of great profit to the Flemish merchants, and that a very great number of English ships are now at sea with such papers, and I suspect even from their own manner of stating the transaction, that the ship and cargo reclaimed by the complainants are of that kind. This seems to me an abuse of the neutrality, as these fictitious profits are added to the advantage of real carriage for the belligerent nations, they make it too much the interest of neutral neighbors to foment wars and obstruct peace, that such profits may continue. And if it is to be understood as a settled point, that such papers are to protect English property, the fitters out of privateers from France, Spain, Holland, and America, will in another year be all ruined, for they will find none but Flemish ships upon the ocean.

With the greatest respect, &c.

B. FRANKLIN.

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ROBERT R. LIVINGSTON TO B. FRANKLIN.

Philadelphia, January 23d, 1782.

Dear Sir,

An express just going to the Chesapeake, gives me an opportunity of sending by the Hermione, a resolution passed yesterday. My letters by this conveyance are so long, that they leave me nothing to add, unless it be, that we have just received letters from Mr Deane, (copies are enclosed) which confirm the authenticity of those published in his name by Mr Rivington, mentioned in my former letters. In one of those publications he expressly advises a return to the government of Great Britain; and, as this could not be effected through Congress, that it should be done by committees, which the people should choose for that express purpose. These, of which I now send you copies, were delivered here by the person to whom Mr Deane gave them, so that there can be no doubt of their authenticity.

We have nothing new except what you will learn from the papers herewith transmitted. As I doubt not you are upon the most confidential terms with the Marquis de Lafayette, I could wish him to see my last letter. You will observe, that I have omitted (for reasons, that you will easily conceive) to make use of the arguments, which may be derived from the 11th and 12th articles of our treaty with France. The Commissioners will exercise their own discretion in applying them, when a negotiation shall be opened.

We were much surprised at not receiving a single line by the frigate, which lately arrived at the Chesapeake, from any one of our foreign Ministers. It is upwards of three months since we have had a letter of intelligence from Europe. Congress complains of these neglects, (for such they consider them) and I flatter myself, that in future, as a channel is now open through this office for a regular correspondence, this cause of complaint will be removed, and that letters and papers will be lodged with our consuls to go by every conveyance.

Be persuaded, Sir, that I shall omit no opportunity to give you every information, which may contribute to your private amusements or the public benefit.

I have the honor to be, &c.

ROBERT R. LIVINGSTON.