The Preliminary Articles: Second Draft Editorial Note
The Preliminary Articles: Second Draft
The first draft of the preliminary treaty was based on purely American proposals1 and Oswald soon learned that it was unacceptable to the British ministry. On 17 October the cabinet directed Townshend to issue new instructions that disclosed how badly Oswald had misjudged the importance his government attached to several issues on which he had given way or had not raised with the Americans.
Oswald was told to extend the Nova Scotia boundary as far to the southwest as possible and if British claims were not accepted, to have them referred to an ad hoc commission. He was to “state” Britain’s right to the backcountry and “urge it as a means of providing for the Refugees,” while indicating Britain’s willingness to yield it if America made some other provision for the Loyalists.2 He was to resist American claims to drying rights on Newfoundland. He could agree to free and open navigation of the Mississippi River granted in the fourth article of the treaty draft, but not to the trade reciprocity it described. Instead, trade relations were to be left to a separate treaty of commerce. Finally, he was to urge the discharge of debts due British creditors before the war “as strongly as possible.” Full instructions would be sent to him “either in writing or by some proper Person.”3
The “proper Person” was the unbending Henry Strachey,4 an undersecretary of state in the Home Office. Ostensibly, his mission was “to explain the Boundaries and authentic Documents, which were only to be found” in London.5 In fact, his real role was much broader. At a conference with Shelburne on 20 October, Strachey had received both verbal and written instructions that dealt with matters far beyond that of boundaries. He was to urge Britain’s right to all the backlands with a view of compensating the Loyalists either by a portion of those lands or with funds raised on their sale.6 Enlarged Nova Scotia boundaries and determining just boundaries for West Florida were also important. Contrary to the cabinet resolution of 17 October, however, if the American commissioners refused to alter their position, Strachey was authorized to accept the boundaries they had proposed in the 8 October draft treaty instead of referring them to a postwar commission.
The only articles in the draft treaty which were “totally inadmissible” were the provision for drying rights on Newfoundland and the free trade section of the fourth article, since the administration had no power to alter the acts of navigation. With these two exceptions, Strachey could agree to the treaty. Above all, however, it “must appear authentically” that he had done his best for the Loyalists and British creditors. “The Debts require the most serious Attention,” Shelburne asserted. The treaty must ensure “That honest Debts may be honestly paid in honest Money” as well as “Some Security” for the creditors in the American courts of justice.”7
Although Townshend’s letter introducing Strachey to Oswald preserved the polite fiction that he was being sent only to aid in determining “with precision” the historic boundaries of the former colonies,8 Strachey’s real mission was clear. Shelburne had already rebuked Oswald for giving in to American demands too easily and for failing to provide for British interests. He insisted on stronger attempts to obtain the backlands for the Loyalists and that the debts to British creditors should not be “lightly passed over.” His assertion that Strachey’s aid might be “a material point” in these matters, as well as in defining boundaries, was too obvious to be missed.9 Oswald informed Jay on 24 October that Strachey would be joining him. Franklin’s improved health and Adams’s arrival in Paris on Saturday the 26th enlarged the number of American participants in the negotiations. Strachey arrived the following Monday and discovered that he had three forceful American commissioners to confront.10
The commissioners conducted intense discussions from Wednesday, 30 October, through Monday evening, 4 November. They settled the boundaries first. The Americans made some concessions but not the substantial ones for which the British Cabinet had hoped. Still to be resolved were the disputes over the fisheries, protection for Loyalists and the property of British merchants, and repayment of private debts.
On the evening of 3 November, the commissioners and Strachey agreed to an article, drafted by Jay, that recognized the legitimacy of private contracts between British and American subjects and the right of British creditors to recover the full value of their debts. The article further specified that Congress should recommend that the states nullify the confiscation of the property of “real British Subjects.” Adams noted that the British negotiators were satisfied with the American proposal because “it silences the Clamours of all the British Creditors, against the Peace, and prevents them from making common Cause with the Refugees.” On 4 November, Adams, Jay, Oswald, and Strachey agreed to a new fisheries article drafted by Adams and completed their work on the second draft treaty.11
The American commissioners continued to counter pressure from the British opposition for compensation for Loyalists with reminders that American private property had been needlessly destroyed or damaged by British forces.12 Oswald felt that though “some material points” for Loyalists, including a six-month grace period and amnesty and clemency according to their circumstances, were gained in the new draft, it fell far short of what was wanted—territorial concessions that could be used to provide either land or funds to compensate Loyalists for their losses. Therefore, after agreeing to Jay’s article on the debts and confiscation, the British negotiators resorted to a last appeal that, Strachey admitted, was intended as much for public relations in England as persuasion in Paris. Oswald’s letter of 4 November to the commissioners was, according to Strachey, written to provide “authentic Proof that every Effort had been used, agreeably to my Instructions from Lord Shelburne; upon a Point wherein the National Honor is so deeply concerned.” There are indications that Strachey drafted this letter as well as the one sent a day later over his own signature.13 Strachey left Paris on the afternoon of 5 November taking with him the corrected text of the draft treaty agreed to on the previous day, alternate boundaries proposed by the American commissioners, and his and Oswald’s “observations” on the fishery article.14
The American peace commissioners did not officially reply to Strachey and Oswald’s letters on the Loyalists before Strachey’s departure.15 Oswald, however, had already seen and described to Strachey an “intended Answer” to his letter of 4 November in which the Americans claimed to be willing to compensate the Loyalists provided Great Britain “would compensate for all the Towns, Houses, Barns, etc. destroyed during the War!”16
On 6 November when Oswald called on Jay for the expected reply to the two letters the two men reargued the Loyalist issue. At noon on 7 November Jay delivered the commissioners’ separate replies to Oswald and to Strachey. In their letter to Oswald of 7 November, below, the commissioners recapitulated the legal obstacles that prevented them from making any general engagements concerning the recovery of confiscated property. In their letter to Strachey dated 6 November they rested their case on their reply to Oswald, a copy of which they enclosed, pointing out that these were “our unanimous sentiments.”17 Jay also asked Oswald for a copy of the draft treaty sent to England. On reexamining the text, he listed certain variances that had apparently escaped his previous notice. This list of Jay’s suggested changes was forwarded to Strachey by Oswald in a communication of 8 November, below.
The British cabinet, meeting on 11, 14, and 15 November, scrutinized the new draft and was still dissatisfied with the provisions regarding the fisheries, the Loyalist refugees, and the prewar debts. It drew up a counter-draft, transmitted to Strachey by Townshend on 19 November,18 and submitted to Adams, Franklin, and Jay on 25 November at the Hôtel Muscovie, where the British commissioner lodged.19 A final round of negotiations produced the preliminary treaty signed by the commissioners on 30 November.20
1. For Oswald’s annotated list of articles recommended to him in his instructions but not included in the first draft, see , 1: 608–10.
2. The first draft did not address this issue at all. BF had previously told Oswald that the individual states had exclusive jurisdiction over Loyalist claims. See Oswald’s Notes on Conversations with Benjamin Franklin and John Jay, 11–13 Aug. 1782, above.
3. Resolution of the Cabinet, 17 Oct. 1782, Tr, NN: Bancroft: Strachey; and MiU-C; Shelburne’s notes of verbal instructions for Strachey, 20 Oct. 1782, , 1: 619–20; , 38: 263–69; and , 1: 287.
4. See Townshend’s letter introducing Strachey to BF of 23 Oct. 1782, , 38: 244–45. JA commented that Strachey was the most “artfull and insinuating a Man . . . they could send. He pushes and presses every Point as far as it can possibly go.” , 3: 46. Vaughan also disliked him. See his letter to Shelburne, 4 Dec. 1782. Massachusetts Historical Society, Proceedings, 17 (1903): 421.
5. Shelburne to Oswald, 23 Oct. 1782, , 1: 623. For a summary of the British cabinet’s reaction to Shelburne’s and Oswald’s conduct of negotiations, see John Cannon, The Fox-North Coalition: Crisis of the Constitution, 1782–4 (Cambridge, 1969), 32–34.
6. On the boundary of Canada and on the consonance of this position with arguments offered by Rayneval, see Rayneval’s Memoir on the Boundaries between Spain and the United States, 6 Sept.; and “The Rayneval and Vaughan Missions to England” (editorial note) on pp. 95–99.
7. See Preliminary Articles: First Draft, 5–8 Oct., above; and Shelburne’s notes on instructions for Strachey, 20 Oct. 1782, , 1: 619–20.
8. Townshend to Oswald, 23 Oct. 1782, LbkC, UkLPR: FO 97/ 157 and 95/ 511; C, MiU-C: Shelburne 70.
9. See Shelburne to Oswald, 21 and 23 Oct. 1782, , 1: 620–22, 623. Townshend let it be known that he, too, felt that Oswald had been “a great deal too easy upon these subjects, so as to appear here to have been quite in the hands of Mr. Franklin and Mr. Jay.” Townshend to Strachey, 21 Oct. 1782, Tr, NN: Bancroft: Strachey, and MiU-C.
10. For JA’s report on these negotiations to the Secretary for Foreign Affairs, see , 14: 27–31.
11. See John Jay’s Diary of the Peacemaking, 12–29 Oct., above; and , 3: 37, 39–46.
12. For JJ’s view on the prospects for British compensation for damages suffered by Americans, see his letter to the Secretary for Foreign Affairs of 14 Dec. 1782, below.
13. For the British negotiators’ attempts to demonstrate their efforts on behalf of the Loyalists, see Oswald to the American Peace Commissioners, 4 Nov., , 38: 276–78; and to Shelburne, 5 Nov. 1782, in , 1: 638; and Strachey to the American Peace Commissioners, 5 Nov. 1782, below. For JJ’s subsequently expressed suspicions that the French were advocating on behalf of the Loyalists as a means of delaying an American settlement with Britain, see Oswald to Townshend, 15 Nov., below. For an overview of the question of compensation for Loyalists, its implementation, and its role in bringing down the Shelburne government, see Maya Jasanoff, “The Other Side of Revolution: Loyalists in the British Empire,” 65, no. 2 (Apr. 2008): 205–33.
14. See the alternate boundary proposals, and Strachey’s and Oswald’s observations on the fishery article, : 415–17.
15. In letters to Townshend of 6–7, and 8 Nov. 1782, below, Oswald and Strachey noted that the Americans had been prevented from answering Oswald’s letter by the arrival of the General Washington, Captain Joshua Barney, with official correspondence from the Secretary for Foreign Affairs and the Superintendent of Finance, on which, see , 6: 516, 518nn2–3.
16. See Strachey to Townshend, 8 Nov. 1782, : 413–14; , 1: 290–97. At the closing stage of the negotiations (29 Nov.), BF again countered demands for American compensation to the Loyalists with one for British compensation to the merchants and shopkeepers of Boston, to the inhabitants of Philadelphia, and to southern planters for the property, including slaves, seized by the British, as well as compensation for “all the Towns, Villages and Farms, burnt and destroyed” by British troops or their “Adherents.” , 38: 375–77.
17. See Oswald to Townshend, 6–7 Nov., below; and the American Peace Commissioners to Strachey, 6 Nov. 1782, LS, in the hand of John Thaxter Jr., UkLPR: FO 97/ 157 (EJ: 5028); , 38: 281. Cs, UkLPR: FO 95/ 511 (EJ: 5026) and UkLPR: Chatham 30–8–343 (EJ: 4924); and DNA: PCC, item 85, 282 (EJ: 9934). LbkCs, DNA: PCC, item 106, 13 (EJ: 4401), and DNA: PCC, Misc. (2)(EJ: 11691, 11693); UkLPR: FO 27/ 2 (EJ: 5036); and MiU-C: Shelburne 70 (EJ: 4938). Tr, NN: Bancroft: Strachey (EJ: 2771).
18. Rough Cabinet Minutes, 11 Nov. 1782, in Townshend’s hand, Fortesque, ed., Corr. of George III, 5: 155 (incomplete report); “Sense of the Cabinet,” 15 Nov. 1782, Dft, MiU-C: Shelburne 72. Endorsed: “ . . . Approved by Mr. Townsend and Mr. Pitt.” For other memoranda on the Cabinet draft, see , 367–68n105; and Townshend to Strachey, 19 Nov. 1782, AL and Dft, UkLPR: FO 95/ 511, and LbkCs, FO 97/ 157 and FO 5/ 8–3. Townshend also wrote to Oswald on 19 Nov. (, 1: 678–79), notifying him that Strachey was returning to Paris with a proposed treaty that satisfied Great Britain and should be acceptable to the Americans. He wrote again three days later to let Oswald know that Parliament had been prorogued until 5 December “to give time to receive a final answer from the Powers with whom we are in Negotiation.” 22 Nov. 1782, Cs, UkLPR: FO 97/ 157 and 27/ 2.
19. After JA arrived in Paris, he evidently assumed responsibility for reporting to the Secretary for Foreign Affairs on the progress of the negotiations. JJ, meanwhile, was preparing his lengthy report to RRL on the discussions that preceded JA’s arrival. BF devoted himself to attempting to persuade the French to advance more funds to the United States for 1783. See JJ to the Secretary for Foreign Affairs, 17 Nov. 1782, below; , 1: 639–42, 655–57, 677–78; , 38: 263–69; 289–90; and , 7: 203–6.
20. See Henry Strachey’s Remarks to the American Peace Commissioners, 25 Nov. 1782, and the preliminary treaty of 30 Nov., below; and “The Preliminary Articles are Signed” (editorial note) on pp. 264–67.