Founding Fathers: Complete Biographies, Their Articles, Historical & Political Documents. Emory Speer
concurred in disapproving, chiefly on the probability that if conquered it would be retained by France. Chief-Justice Jay was again sent to congress on a special occasion, the withdrawal of Vermont from the jurisdiction of New York, and three days after taking his seat he was, 1 Dec., 1778, elected its president. The next September he wrote his letter, in the name of congress, on currency and finance. On 27 Sept., 1778, he was appointed minister to Spain, and later one of the commissioners to negotiate a peace. He sailed with Mrs. Jay, on 20 Oct., in the American frigate “Confederacy,” which, disabled by a storm, put into Martinico, whence they proceeded in the French frigate “Aurora,” which brought them to Cadiz, 22 Jan., 1780. Jay, while received with personal courtesy, found no disposition to recognize American independence, and congress added to the embarrassing position of the minister at a reluctant court by drawing bills upon him for half a million of dollars, on the assumption that he would have obtained a subsidy from Spain before they should have become due. Jay accepted the bills, some of which were afterward protested, the Spanish court advancing money for only a few of them, and the rest were afterward paid with money borrowed by Franklin from France.
While in Spain Jay was added by congress to the peace commissioners, headed by John Adams, and at the request of Franklin, on 23 June, 1782, he went to Paris, where Franklin was alone. The position of the two commissioners was complicated by the fact that congress, under the persistent urgency of Luzerne, the French minister at Philadelphia, had materially modified the instructions originally given to Mr. Adams, and on 15 June, 1781, had instructed its commissioners “to make the most candid and confidential communications upon all subjects to the ministers of our generous ally, the king of France; to undertake nothing in their negotiations for peace and truce without their knowledge and concurrence, and ultimately to govern yourselves by their advice and opinion.” Two arguments were used in support of this instruction: First, that the king was explicitly pledged by his minister to support the United States “in all points relating to their prosperity”; and next, that “nothing would be yielded by Great Britain which was not extorted by the address of France.” An interesting memoir in the French archives, among the papers under the head of “Angleterre,” shows that the interests of France required that the ambition of the American colonies “should be checked and held down to fixed limits through the union of the three nations,” England, France, and Spain. Before the arrival of Jay, Franklin had had an informal conversation, first with Grenville, and then with Mr. Oswald, who had been sent by the cabinet of Rockingham. On 6 Aug. Oswald presented to Jay and Franklin a commission prescribing the terms of the enabling act, and authorizing him “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.” etc. This document led to a new complication in the American commission by developing a material difference of opinion between Jay and Franklin. When the commission was submitted to Vergennes, that minister held that it was sufficient, and advised Fitzherbert to that effect. Franklin believed it “would do.” But Jay declined to treat under the description of “colonies” or on any other than an equal footing. Oswald adopted Jay's view, but the British cabinet did not, and Jay's refusal to proceed soon stayed the peace negotiations of the other powers, which Vergennes had arranged should proceed together, each nation negotiating for itself.
During Jay's residence in Spain he had learned much of the aims and methods of the Bourbon policy, and a memoir submitted to him by Rayneval, as his “personal views” against our right to the boundaries, an intercepted letter of Marbois, secretary of legation at Philadelphia, against our claim to the fisheries, and the departure for England with precautions for secrecy of Rayneval himself, the most skilful and trusted agent of Vergennes, convinced him that one object of Rayneval's mission was to prejudice Shelburne against the American claims. As a prudent counter-move to this secret mission, Jay promptly despatched Benjamin Vaughan, an intimate friend and agent of Shelburne, to counteract Rayneval's adverse influence to the American interests. This was done without consultation with Franklin, who did not concur with Jay in regard to Rayneval's journey, and who retained his confidence in the French court and was embarrassed and constrained by his instructions. It appears from “Shelburne's Life” that Rayneval, in his interview with Shelburne and Grantham, after discussing other questions, proceeded to speak about America; and “here Rayneval played into the hands of the English ministers, expressing a strong opinion against the American claims to the fisheries and the valleys of the Mississippi and the Ohio”; and that Vaughan arrived almost simultaneously, bringing the “considerations” prepared by Jay, which enforced these points: 1. That, as Britain could not conquer the United States, it was for her interest to conciliate them; 2. That the United States would not treat except on an equal footing; 3. That it was the interest of France, but not of England, to postpone the acknowledgment of independence to a general peace; 4. That a hope of dividing the fisheries with France would be futile, as America would not make peace without them; 5. That any attempt to deprive the United States of the navigation of the Mississippi, or of that river as a boundary, would irritate America; 6. That such an attempt, if successful, would sow the seeds of war in the very treaty of peace. The disclosure of the grave difference between the Americans and their allies on the terms of peace, with the opportunity it afforded to England, consistently with the pride, interest, and justice of Great Britain, and with the national jealousy of France, seems to have come to the cabinet with the force of a revelation, and its effect upon their policy was instantaneous and complete. A new commission in the form drafted by Jay, authorizing Oswald to treat with “the United States” of America, was at once ordered, and Lord Shelburne wrote to Oswald that they had said and done “everything which had been desired,” and that they had put the greatest confidence ever placed in man in the American commissioners. Vaughan returned “joyfully” with the new commission on 27 Sept., and on 5 Oct. Jay handed to Oswald the plan of a treaty including the clauses relating to independence, the boundaries, and the fisheries, and Oswald, in enclosing it to his government, wrote: “I look upon the treaty as now closed.” The great success of the English at Gibraltar, however, which determined the ministry to resist the demands of France and Spain, induced them to attempt some modification of the concessions to the Americans, even when they had been made by Oswald with the approval of the cabinet. Strachey and Fitzherbert were therefore ordered to assist Oswald, and on 25 Oct. John Adams arrived from Holland, where he had negotiated a treaty. He expressed to Franklin his entire approval of Jay's views and action, and Franklin, at their next meeting with Oswald, said to Jay: “I am of your opinion, and will go on with these gentlemen without consulting the court ”; and Jay, in writing to Livingston, spoke of their perfect unanimity, and specially acknowledged Mr. Adams's services on the eastern boundaries and Franklin's on the subject of the Tories. The provisional articles, signed 80 Nov., 1782, to take effect on a peace between France and England, were communicated to Vergennes, who wrote to Rayneval in England that the concessions of the English exceeded all that he had believed possible, and Rayneval replied: “The treaty seems to me like a dream.” A new loan from France to America marked the continuance of their good understanding, and Hamilton wrote to Jay that the terms of the treaty exceeded the anticipations of the most sanguine.
The violation of the instructions of congress displeased a part of that body. Mr. Madison, who had voted for the instruction, wrote: “In this business Jay has taken the lead, and proceeded to a length of which you can form little idea. Adams has followed with cordiality. Franklin has been dragged into it.” Mr. Sparks, in his “Life of Franklin,” contended that the violation of their instructions by the American commissioners, in concluding and signing their treaty without the concurrence of the French government, was “unjustifiable.” By some error still unexplained, he represented the correspondence of Vergennes in the French archives as disproving the suspicions, which it authoritatively confirms. A map of North America, given in the “Life of Shelburne,” showing “the boundaries of the United States, Canada, and the Spanish possessions, according to the proposals of the court of France,” shows that obedience by the American commissioners to the instruction to govern themselves by the opinion of Vergennes, would have shut out the United States from the Mississippi and the Gulf, and would have deprived them of nearly the whole of the states of Alabama and Mississippi, the greater part of Kentucky and Tennessee, the whole of Ohio, Michigan, Indiana, Illinois, Wisconsin, and part of Minnesota, and the navigation of the Mississippi.
The definitive treaty, a simple