treaty; with an exception only of the usual formalities of reference to Commissions, &c. Also that, as to the point of ratification, so as to establish peace, it must wait for our conclusion with France, as you will please to observe is declared in the preamble.

After considering the terms, as they stand in the treaty, I thought there was no reason to object to the boundaries lines of the thirteen States, excepting that there is a part of Nova Scotia cut off on the Bay of Fundy. I called on Mr. Jay this morning, and found him willing to set that matter to rights, so as the Massachusets Government shall have no more of that coast than they had before the war. He took his directions from maps, and they are not distinct, nor do they agree in this matter. This is in the meantime referred, to be afterwards properly adjusted.

I next talked to him about the claim of drying fish on the Island of Newfoundland, as not having been mentioned, or included in Dr. Franklin's necessary articles. Mr. Jay said he put them into the treaty to avoid an appearance of unneighbourly distinctions, and considering it as not material to us, there being room enough for both of us, as well as for the French. But if we thought otherways, he would not say but they might give it up, rather than we should be dissatisfied about it, believing their people would not much value the privilege, and would in general choose to bring their fish to their own coasts, as they used to do.

On this subject, if I might speak my opinion, it is a question whether we ought to insist on their exclusion, while the French enjoy that conveniency: and on that account, although the Americans had not desired a similar privilege, whether there would have been any harm in offering it to them, since their exclusion would be always attended with a grudge.

In my last letters I advised that the value of the ungranted lands in the several Colonies could not be saved as a fund at His Majesty's disposal, as the Commissioners insisted that every property belonging to the Crown must go with other rights within the Thirteen States. In case, Sir, you should think it proper that I should press this matter farther, you will be pleased to let me know. At same time I must confess that considering the little chance of success, and that I look upon the treaty as now closed, I doubt whether it would be proper to open it on this account. In any other case, one would not say so; but where there is no control on one side and circumstances press for decision, perhaps it may be proper, if other things are right, not to insist on a provision of this kind standing part of the treaty. At same time, as a great sum may be raised out of this property, as well as out of what is cut off from Canada, it would not be taken amiss by the Commissioners, if it was submitted to their consideration and equity, in a separate way from any determination regarding the treaty.

A separate letter on that subject, laying claim to their justice and good sense, in distinguishing a resignation of property no way connected with those of legislation and governments, and intended for the relief of unfortunate sufferers, may have some weight with the several provinces in softening their resentment against some of those people, and extending their indulgence to them accordingly in the way of restitution or indemnification. But as I have said, if the treaty is otherways approved of, I offer it as my humble opinion that an expectation of this kind had best be suggested independently, and sent me in a separate letter, to be laid before the Commissioners.

I touched also upon the debts due to British subjects, and my apprehensions of loss by confiscations. Mr. Jay replied that he had heard of no such confiscations, but in the province of Maryland; which he seemed not to approve of. However, as I had before been satisfied that they, as Commissioners, could do nothing in the matter, I did not insist further upon it.

Before we parted, this gentleman came again upon the subject of West Florida, and pled in favour of the future commerce of England, as if he had been of her Council, and wishing to make some reparation for her loss. Amongst other things, he repeated, that there is water carriage by rivers or lakes all the way within land from Canada to the mouth of the Mississippi, excepting a few short stoppages of portage; so that, for outward merchandize, we might engross the whole of their supplies, for a stretch of country between two and three thousand miles, and in like manner (chiefly by means of the Mississippi) receive their country commodities in return, and particularly should embrace the whole of the fur trade. In all which I am satisfied he is well founded.

[1782, October 8: Treaty of Amity and Commerce between the United States and the Netherlands. (Ratified January 22, 1783.)]

74 No. 75.-1782, October 11: Extract from Mr. Oswald's Minutes of sundry Articles recommended in his Instructions, not included in the Treaty.

5. Drying fish in Newfoundland, excepted in the Instructions but demanded in the treaty. Quere, if material. Supposed not so. When the privilege of fishing was asked by Dr. F. in August, this was not mentioned particularly, and I did not think it proper to appear so attentive and tenacious of such like indulgences so as to ask any questions about it. And when lately demanded, although I objected, yet did not insist, for the same reason. And now although Mr. Jay seems not positively to say that the privilege is indispensible, yet I own I wish much that it may not be considered in England as a matter of such consequence as to occasion a claim of exception. For to tell the truth, when Dr. Franklin stated the privilege of fishing, I suspected drying was included, though not mentioned. Otherways I should have wondered at his asking our leave for Americans catching fish in the open seas, so near their own coasts, and wrote so in my letters at the time.

No. 76.-1782, October 13: Letter, Mr. Jay to Governeur Morris. PARIS, October 13, 1782.

DEAR MORRIS: I have received your festina lente letter, but wish it had been at least partly in cipher; you need not be informed of my reasons for the wish, as by this time you must know that seals are, on

this side of the water, rather matters of decoration than of use. It gave me nevertheless great pleasure to receive that letter, it being the first from you that had reached me, the Lord knows when. I find you are industrious, and of consequence useful, so much the better for yourself, for the public, and for our friend Morris, whom I consider as the pillar of American credit.

The King of Great Britain, by letters patent under the great seal, has authorised Mr. Oswald to treat with the commissioners of the United States of America. His first commission literally pursued the enabling act, and the authority it gave him was expressed in the very terms of that Act, viz, to treat with the colonies, and with any or either of them, and any part of them, and with any description of men in them, and with any person whatsoever, of and concerning peace, &c.

Had I not violated the instructions of Congress, their dignity would have been in the dust; for the French minister even took pains, not only to persuade us to treat under that commission, but to prevent the second, by telling Fitzherbert that the first was sufficient. I told the minister that we neither could nor would treat with any nation in the world on any other than on an equal footing.

We may and we may not have a peace this winter. Act as if the war would certainly continue; keep proper garrisons in your strong posts; and preserve your army sufficiently numerous, and well appointed, until every idea of hostility and surprise shall have completely vanished.

I could write you a volume, but my health admits only of short intervals of application.

Present my best wishes to Mr. and Mrs. Morris and such other of our friends as may ask how we do.

I am, &c.,

JOHN JAY.

No. 77.-1782, October 14: Extract from letter, Dr. Franklin to Mr.

Livingston.

PASSY, October 14, 1782. SIR: I have but just received information of this opportunity, and have only time allowed to write a few lines.

In my last, of the 26th past, I mentioned that the negotiation for peace had been obstructed by the want of due form in the English commissions appointing their plenipotentiaries. In that for treating with us the mentioning our States by their public name had been avoided, which we objected to; another is come, of which I send a copy enclosed. We have now made several preliminary propositions, which the English minister, Mr. Oswald, has approved and sent to his court. He thinks they will be approved there, but 75 I have some doubts. In a few days, however, the answer

expected will determine. By the first of these articles the King of Great Britain renounces for himself and successors all claim and pretension to dominion or territory within the thirteen. United States; and the boundaries are described as in our instructions, except that the line between Nova Scotia and New England is to be settled by commissioners after peace. By another article the fishery in the American seas is to be freely exercised by the Ameri

cans wherever they might formerly exercise it while united with Great Britain. By another the citizens and subjects of each nation are to enjoy the same protection and privileges in each other's ports and countries, respecting commerce, duties, &c., that are enjoyed by native subjects. The articles are drawn up very fully by Mr. Jay, who, I suppose, sends you a copy; if not, it will go by the next opportunity. If these articles are agreed to I apprehend little difficulty in the rest. Something has been mentioned about the refugees and English debts, but not insisted on, as we declared at once that whatever confiscations had been made in America, being in virtue of the laws of particular States, the Congress had no authority to repeal those laws, and therefore could give us none to stipulate for such appeal.

*

No. 78.-1782, October 20: Lord Shelburne's Instructions to Mr. Henry Strachey.

LORD SHELBURNE's Instructions to me, written by him at Lord Grantham's, and delivered to me there on Sunday, the 20th October, 1782. Present, Lord Shelburne, Mr. Townshend, Lord Grantham, Mr. Orde.

SUNDAY, THE 20TH OCTOBER, 1782.

Urge our right to all Backlands, the claim of the Provinces having been bounded by the Proclamation of 1763, and acquiesced in. Urge the right of the King to the soil under the Charters however understood.

Urge the French boundary of Canada.

Urge the boundary established by the Quebec Act, which was acquiesced in.

Urge all this with a view to obtain some compensation for the Refugees, either by a direct cession of territory in their favour, or by engaging the half, or some proportion of what the back lands may produce when sold, or a sum mortgaged on those lands, or at least a favorable boundary of Nova Scotia, extending it if possible, so as to include the Province of Maine; if that cannot be, the Province of Sagadahock, or at the very least to include Penobscott.

Urge the just boundaries of West Florida.

But, it is understood that if nothing of this can be obtained after the fairest and most strenuous trials, it may be left to commissaries to settle, and the American propositions accepted, leaving out the right of drying fish on the Island of Newfoundland, and confining them to what hitherto they have used, a drift fishery; and expunging all the last article except what regards the Mississippi, administration having no power as to the Act of Navigation.

It must appear authentically (1) that every instance has been used in favor both of the Refugees and of the debts prior and subsequent to 1775, and the most favorable terms obtained, if possible, in the way of absolute and positive engagement; if not, in the way of recognition. Mr. Strachey to return as soon as possible.

(1) [Marginal note.]-That is a signed answer.

The Refugees are of great importance; but, if the Province of Maine be left to Nova Scotia, and the Americans can be brought to join us in regard to West Florida, there are resources which may satisfy them, but the debts require the most serious attention that honest debts may be honestly paid in honest money-no Congress

money.

Some security as to American courts of justice, in lieu of their right of appeal, which subsisted when the debts were contracted.

No. 79.-1782, October 21: Letter, Lord Shelburne to Mr. Oswald. Private.

RICHARD OSWALD Esqr.

SHELBURNE HOUSE 21 Oct. 1782

DEAR SIR I am to acknowledge your letters of the 19th September and 11th October upon the subject of Mr. Laurens. . . . .

I trust and hope you are better founded in your judgment of the American Commissioners now at Paris. I am disposed to expect everything from Dr. Franklin's comprehensive understanding and character; and, as I know nothing to the contrary, I am open to every good impression you give us of Mr. Jay. But as you desire to be assisted by my advice, I should act with great insincerity, if I

did not convey to you that I find it difficult, if not im76 possible, to enter into the policy of all that you recommend upon the subject both of the fishery and the boundaries, and of the principle which you seem to have adopted of going before the Commissioners in every point of favour or confidence. The maxim is not only new in all negotiations; but I consider it as no way adapted to our present circumstances, but as diametrically opposite to our interests in the present moment.

Supposing the Colonies to return to the state they were in in 1763, I consider it as of the utmost importance to keep the fishery as distinct as possible, to avoid the numberless disputes which occurred perpetually before the present war; but the separation on the point of taking place, makes it indispensable for the welfare of both countries, to prevent future contention.

In regard to the refugees, I speak of the mass of them, avoiding to enter into particular odious cases, which must always occur in such great concussions;-Can there in nature be anything more reasonable than to insist on the justice due to them? Nor can a single argument be offered against it, except what you urge of the particular situation of the Commissioners acting under Thirteen Provinces with different interests, and in fact no common centre. To remedy this, the matter of the boundaries and back lands naturally presents itself. Independently of all the nonsense of charters-I mean when they talk of extending as far as the sun sets the soil is, and has always been, acknowledged to be the King's. For the good of America, whatever the Government may be, new provinces must be erected on those back lands and down the Mississippi; and supposing them to be sold, what can be so reasonable as that part of the produce, where the King's property alone is in question, should be applied in